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October 29, 2021 | ISSUE #22
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JUDICIAL & ADMINISTRATIVE DECISIONS
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Gary Byrne, et al v. Springfield School District, et al, 2021 WL 4847804 (E.D. Pa. 2021)
SCHOOL TERRITORY TRANSFER/INDEPENDENT DISTRICTS
State-Created Danger • Bullying
The Eastern District Court granted Springfield School District’s (Springfield) motion to dismiss a complaint filed by the plaintiffs alleging harm from a school’s failure to stop bullying. The plaintiffs' son participated in an online group chat in which the members discussed Black Lives Matter. The group chat included the son’s peers, who held “varying political ideologies ranging from very liberal to very conservative.” Student #1, “one of [plaintiffs' son's] closest, longstanding friends,” also participated in the group chat where they publicly exchanged viewpoints in June 2020. During the course of this exchange, the plaintiffs' son stated, “You’re saying counterpoints that have nothing to do with what I’m saying cause u can’t dispute n*****s doing n****r shit.” His comment was “renounced” by the other group chat participants. Most said, “‘[Y]ou can’t say the n word,’ or words to that effect.” But Student #1 “pugnacious[ly]” responded: “1. Ur racist 2. Ur a piece of s**t.” Student #1 threatened to send the comment to “black twitter” to prevent the plaintiffs' son from “going to college.” Others responded to Student #1’s threat that it would be “f***ed up” to share the comment because “that’s his whole future.” The plaintiffs' son “apologized profusely” and “confessed” he erred by making the comment. The plaintiffs' son texted Student #1 the next day: “Bruh u actually gonna send that [comment] to people?” Student #1 replied, “No. It was [a joke]” to which the plaintiffs' son, “[r]elieved,” responded, “I’d honestly probs [probably] kms [kill myself] if I’m being honest if that happens.” The comment and Student #1’s threat to disclose it “were forgotten” until October 2020, when the plaintiffs' son returned to in-person classes and was summoned to the principal’s office because the principal received a complaint from a Black, female student that the plaintiffs' son had used a racial slur in her presence during lunch. The plaintiffs' son denied the claim and later asked Student #2 on Instagram why she made the claim; Student #2 responded by sending a screenshot of the plaintiffs' son’s group chat message at which point the plaintiffs' son realized Student #1 had shared his message outside of the group chat. Thereafter, the plaintiffs' son experienced bullying from his classmates responding to the slur. The principal also spoke to the plaintiffs' son again. The principal told the plaintiffs' son that the principal was “fully aware of the magnitude of the bullying [the plaintiffs' son] had been enduring and its deleterious consequences on his delicate psyche and emotional state.” He “knew the plaintiffs' son was under severe attack for a regrettable insensitive comment he had made many months before which was now circulating widely in the unforgiving atmosphere of high school, only further exacerbated by the unfolding events of 2020.” Thereafter, the plaintiffs' son wrote to the group chat, “I’ve had enough of everything...I don’t know what to do anymore.” Ultimately, someone sent the plaintiffs' son a direct message on Instagram “threatening him and his family with serious physical violence” and the plaintiffs' son took his own life. His family initiated litigation against Springfield, alleging that Springfield failed to protect the plaintiffs' son from bullying.
The plaintiffs alleged liability under five theories: (1) violation of substantive due process for state-created danger, against Springfield; (2) violation of “substantive due process – shocks the conscience,” against Springfield; (3) municipal liability against Springfield; (4) wrongful death, against the principal; (5) and a survival action, against the principal. Springfield moved to dismiss the complaint, arguing that the plaintiffs’ state-created danger claim fails because they did not plead affirmative misuse of state authority, conscience-shocking activity, and foreseeable and direct harm. Springfield also argued that the wrongful death and the survival actions should be dismissed because the complaint did not plead any substantive claims related to these.
In granting Springfield’s motion to dismiss the state-created danger claim, the court found that the plaintiffs did not plead affirmative misuse of state authority that created or increased danger to the plaintiffs' son, any conscious-shocking conduct, or a direct and foreseeable harm. The court focused first on the fourth element of the state-created danger doctrine – a state actor affirmatively used his or her authority in a way that created a danger to the citizen – and reviewed extensive case law related to this element. Based on this analysis and review, the court determined that the principal’s comments to the plaintiffs' son maintained the status quo because the plaintiffs' son had already suffered bullying and suicidality. The comments did not increase the risk to the plaintiffs' son. The court turned to the other elements of the state-created danger doctrine and found that they were also not met. The plaintiffs did not plead the deliberate indifference necessary to shock the conscience. They also did not plead any facts showing that the plaintiffs' son presented a substantial risk of suicide to Springfield, nor that Springfield consciously disregarded a substantial risk. The plantiffs also did not plead that the plaintiffs' son’s suicide constituted a foreseeable and fairly direct harm because Springfield did not know of the risk to their son. Finally, the court dismissed the plaintiffs’ wrongful death and survival action because they did not plead substantive claims related to these causes of action.
Click here for the opinion.
Erin Smith v. Warwick School Dist., Appeal Case No. A20-0144 (Workers’ Comp. App’l Bd 2021)
WORKERS’ COMPENSATION
Abnormal Working Conditions • Child Abuse Allegation
The Workers’ Compensation Appeal Board (Board) reversed the decision of Workers’ Compensation Judge Thomas Kutz (WCJ) that granted the claimant’s claim petition. On April 20, 2017, the claimant, a teacher, filed a claim petition seeking disability benefits by alleging that she experienced disabling injuries as a result of Warwick School District (Warwick) accusing her of child abuse. She worked in a special education classroom and had a student in her classroom, J.E., who was autistic and had different self-stimming behaviors that weren't typical of other kindergartners. The claimant testified that there came a time when J.E. began yelling and screaming and the claimant led him by the small of his back into the bathroom so he could continue to yell and scream. She denied the allegation she dragged J.E. across the floor and shoved him into the bathroom or leaned her body and held the door shut during the incident. There also was an allegation that the claimant put J.E. into the bathroom as punishment because he was afraid of the bathroom fan, which the claimant denied. In April of 2014, the claimant had a series of meetings with the principal and an assistant superintendent where she was asked questions about the tone of the adult conversation in her classroom, planning a wedding celebration, eating food in the classroom, and making personal calls and texting in the classroom. She also was asked about J.E. and her disciplining him by putting him into the bathroom. She learned that one of her classroom aides had called Childline and accused her of child abuse. The claimant was extremely upset at the way everything was happening, not specifically the allegation itself. She made an appointment with a doctor that afternoon, because she was extremely anxious and depressed, and she was prescribed a medication and continued her medical treatment afterward. The claimant reported to the district office the next day and was told all the other aides in the room, and the student, corroborated what had occurred, and the claimant was the only one whose story was different. The claimant received a letter of discipline on April 29, 2014, which stated that the administration had reached a conclusion that she had inappropriately restrained and falsely imprisoned J.E. in the bathroom, and this was confirmed by the five adult witnesses and the student. The claimant did not agree with this allegation but agreed with the other allegations related to outside food that was eaten in the classroom, personal phone calls being made, staff texting, and inappropriate comments being made about how the building principal handled situations. She was suspended for five days, which were later returned to her after her grievance was partially successful, and no criminal charges were ever brought against her. She returned to work in February of 2015 because she did not have a choice and needed the income. She was placed in a gifted classroom.
The WCJ concluded that the claimant proved that she sustained adjustment disorder with mixed anxiety and depressed mood as a result of an abnormal working condition. The WCJ determined that Warwick’s discipline against the claimant constituted an abnormal working condition. Based on this, the WCJ awarded benefits to the claimant from the spring of 2014 until February 2015. He then suspended her benefits after February 2015, finding that she had fully recovered from her work injury as of November 9, 2016. Both parties appealed. Warwick appealed, claiming that the claimant’s circumstances did not constitute abnormal working conditions. The Board agreed with Warwick, finding that claimant failed to establish “by unequivocal medical evidence that she has a psychological condition, and that the psychological condition was caused by her employment.” In reaching this conclusion, the Board found that neither the series of events nor the finding in the letter of discipline that claimant’s actions constituted “cruelty” against a child rose to the level of abnormal working conditions. The Board pointed out that although the WCJ did not agree with the outcome of the investigation, that did not transform a normal, thorough investigation into something “abnormal.”
Click here for the opinion.
Denny L. Harer v. Muncy School District, 2021 WL 4878985 (Commw. Ct. 2021)
CIVIL PROCEDURE; EVIDENCE; MOTIONS
Requests for Admission • Deemed Admitted
The Commonwealth Court affirmed the order of the Court of Common Pleas of Lycoming County, which granted Muncy School District’s (Muncy) motion for summary judgment. Harer, a former wrestling coach at Muncy, filed a one-count complaint against Muncy and two employees for defamation, alleging that the superintendent defamed him during an April 19, 2018 school board meeting during which the decision was made not to renew Harer’s contract. The complaint alleged that during the meeting, the superintendent made defamatory statements including that: (1) Harer inaccurately recorded an individual’s weight during a hydration test; (2) Harer was heard yelling expletives toward referees in a match in 2009; (3) Harer did not provide written notification to Muncy administrators to file attendance of athletes at a tournament in 2014; (4) Harer confronted a Muncy School Board member at a local event in 2015; (5) Harer inappropriately used chewing tobacco on school property and allowed individuals not approved by the Muncy School Board to participate in organized wrestling activities; (6) Harer used inappropriate comments related to race, origin, gender, ancestry and/or sex in 2015; (7) Harer violated school board policies and procedures regarding coaching reputation in 2018; and (8) Harer was not in compliance with the Pennsylvania Interscholastic Athletic Association Sports Medicine Guidelines prohibiting the use of saunas and sauna suits and failed to report safe medical directives regarding the 72-hour safe athlete protocol for hypohydration. After the pleadings were closed, Harer was served with nine Requests for Admissions (Requests) asking him to admit that the statements made by the superintendent were true. Harer failed to respond to the Requests. Muncy filed a motion for summary judgment, arguing that since Harer failed to respond to the Requests, he was admitting that the statements made by the superintendent were true. Accordingly, there are no outstanding issues of material fact. The trial court granted Muncy’s motion noting that Harer had never “controverted the allegations in the [Requests] through even an untimely service of responses … .”
The Commonwealth Court noted that Harer never produced any evidence in response to the summary judgment motion to show that there was a genuine issue of material fact. Harer never even moved to withdraw the admissions. In light of case law holding that “fact admitted by a party ‘through its failure to respond to … request for admissions’ must be accepted as true,” the court affirmed the trial court.
OPINION NOT REPORTED
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.
Kim Doan, and I.D., et al v. Downingtown Area School Dist., 2021 WL 4476993 (E.D. Pa 2021)
SPECIAL EDUCATION; SECTION 504; ADA; GIFTED EDUCATION
Fourteenth Amendment • Due Process
The District Court granted Downingtown Area School District’s (Downingtown) motion for summary judgment on the plaintiff’s 14th Amendment procedural due process claim. The plaintiff is the parent of a student in Downingtown who received one-on-one, in-person, advanced math instruction for the fifth grade year. The plaintiff’s son, I.D., was identified in second grade as gifted and was placed in an online accelerated math program. That online program was unsuccessful and the following year, I.D., in the third grade, was placed in a regular fourth-grade math class. This was successful and the following school year, I.D. was placed in the fifth-grade math class. The next year, I.D., now a fifth grader, was placed back into an online accelerated program because there was no on-site sixth grade math class. The plaintiff insisted that Downingtown was obligated to drive her son back and forth to a different school building for advanced math instruction with a regular sixth grade math class, rather than use the online platform. The school disagreed and issued a Notice of Recommended Placement (NOREP) for the online math platform during I.D.’s fifth grade school year. The plaintiff challenged that decision in a due process hearing and received a favorable decision from the hearing officer who directed that I.D. be placed in an above-grade-level math class in a regular classroom setting, although transportation to and from another school might not be necessary if there was another way to provide that education.
The school district simultaneously appealed that decision to the Commonwealth Court and revised I.D.’s educational plan to include one-on-one, in-person, above-grade-level math education from a certified teacher. The plaintiff pursued a second due process hearing, arguing that this plan violated the first order that the education be provided in a regular educational setting. The hearing officer concluded that because the first opinion was on appeal to the Commonwealth Court, she had no authority to enforce the requirement. The Commonwealth Court affirmed the first hearing officer’s decision, that the school should reevaluate I.D.’s individualized education program (IEP) before moving back to online instruction and that I.D. was entitled to education in a regular classroom setting. Downingtown then officially changed I.D.’s IEP to provide for one-on-one individual instruction, believing that I.D.’s success in the program so far demonstrated that it was an appropriate placement. The plaintiff pursued a third due process hearing in response to this change, but that hearing was dismissed as moot because the school year had ended. The plaintiff then pursued a fourth due process hearing, seeking enforcement of the original Commonwealth Court’s order and a finding that one-on-one math instruction was inappropriate and I.D. had a right to math instruction in a regular classroom setting. The hearing officer concluded that he did not have authority to enforce a Commonwealth Court order and that he could not address the other issues because prior hearing officers had already ruled on them. The plaintiff then filed this action in federal court, alleging that Downingtown violated I.D.’s procedural due process rights by continually contesting the education plan the plaintiff requested, which was transportation every day to a regular sixth grade math class.
The District Court found no procedural due process violation, however, the plaintiff failed to utilize the proper procedural avenues to challenge the school district’s educational plans. Specifically, the issue on whether one-on-one, in-person, education for I.D. was inappropriate was never addressed by the Commonwealth Court or the hearing officers, although the plaintiff could have sought through proper procedure to have them addressed. The court noted that, “there is no procedural due process violation when adequate procedure exists but a plaintiff was unable to figure out how to utilize it.” Accordingly, because the plaintiff presented the wrong issues during due process hearings and because she failed to appeal due process officer decisions, her claim was denied.
Click here for the opinion.
Kevin Dorsey v. Pennsbury School District, 2021 WL 4440528 (E.D. Pa 2021)
EMPLOYMENT DISCRIMINATION
Gender Discrimination • Failure to State a Claim
The District Court dismissed the plaintiff’s complaint alleging violations of §1983 and §1985 against Pennsbury School District (Pennsbury) without prejudice, in part, and with prejudice with respect to claims against individual defendants in their official capacities. Dorsey alleges that the district verbally abused him, paid him less than his peers, left him out of meetings and retaliated against him when he tried to report the conduct. Dorsey, who is in a same-sex relationship and does not conform to traditionally held gender stereotypes, sued Pennsbury for discrimination based on his gender and sexual orientation, claiming violations of Title VII and the Pennsylvania Human Relations Act. Dorsey also sought monetary damages under §§ 1983 & 1985.
The court determined that Dorsey did not allege sufficient facts to make out a plausible § 1983 claim against each defendant. With respect to the individual defendants, Dorsey did not match any board members to the discriminatory conduct that he alleges he suffered. He only articulated the conduct, time and place of the discrimination. Accordingly, the court dismissed the §1983 claim against the individual defendants because Dorsey failed to show how they were personally involved in the discrimination. With respect to the claims against individuals in their official capacities, this claim is the same as a claim against Pennsbury, so, since he already sued the school district, those claims were redundant. With respect to the §1985 claim, Dorsey failed to show any evidence of an agreement or that the individuals conspired against gay men as a group. The District Court granted him leave to file an amended claim on this issue.
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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PSBSA presents President’s Award for Distinguished Career Achievement
During its Annual Business Meeting on October 27, 2021, the PA School Board Solicitors Association (PSBSA) announced and recognized this year’s recipient of the President’s Award for Distinguished Career Achievement: Stuart Knade, PSBA's chief legal officer! PSBSA also plans to honor Knade at the July 2022 Solicitors Symposium, which is scheduled to be in person. Click here to read the award letter.
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COVID Clearinghouse
If legal actions are filed against your client districts related to masking requirements or absence of masking mandates, enforcement of masking, vaccine mandates for staff, requiring students testing positive or having symptoms to stay home, or similar issues arising from implementation of district health and safety plans, please keep us informed (to the extent you are able consistent with client preferences), and provide us with copies of any such complaints. Several solicitors have already shared copies of complaints and other pleadings as well as court decisions, including litigation related to masks. All of the information is uploaded to the COVID Clearinghouse.
You can upload any information that you wish to share or email it to LegalServices@psba.org, with “COVID information” in the subject line.
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MARK YOUR CALENDAR
NEW! School Solicitors Monthly Exchange
PSBA initiated a new complimentary networking program for members of the Pennsylvania School Board Solicitors Association that provides a convenient, regular opportunity for solicitors to “gather” virtually to brainstorm and compare notes on school law issues they are dealing with. These sessions take place on the third Wednesday of each month, 12:30-1:15 p.m. via Zoom. At the October 20 session, attendees discussed masking litigation as well as masking and safety at school board meetings. The next session will be held November 17, 2021. Click here to register for any/all of the upcoming sessions. We hope you will join us!
2021 Virtual School Law Workshop - Thank you
Thank you to those who attended the 2021 Virtual School Law Workshop! Information about our upcoming events, Spring Legal Roundup in April and Solicitors Symposium in July, will be coming in the new year. Please plan to join us!
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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! In the spring of 2021, 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 clelegal@psba.org.
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INFORMATION FROM PSBSA
2022 Officers and Directors
At the scheduled PSBSA Annual Business Meeting via Zoom on October 27, 2021, the following officers were elected/appointed for the forthcoming year. Congratulations to PSBSA’s 2022 officers!
Rachel K. Lozosky, Esq., President
Benjamin L. Pratt, Esq., President-Elect
Amy H. T. Brooks, Esq., Secretary
John G. Audi, Esq., Immediate Past-President
Gregory J. Merkel, Esq., Section 1 Director
Christopher M. Byham, Esq., Section 2 Director
Christopher R. Lantz, Esq., Section 3 Director
Jarrett J. Ferentino, Esq., Section 4 Director
Barbara A. Graham, Esq., Section 5 Director
Nicholas E. Newfield, Esq., Section 6 Director
William J. Zee, Esq., Section 7 Director
Peter Amuso, Esq., Section 8 Director
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 jo.mundis@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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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., Chief Legal Officer
Linda J. Randby, Esq., Senior Director of Legal Services
Jo Mundis, Legal Services Coordinator
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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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