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January 8, 2021 | ISSUE #1
The School Law Information Exchange & Public Sector Arbitration newsletter has become School Law EDition! The updated newsletter features the same relevant and timely school law content delivered to your inbox on a biweekly basis, but with a refreshed design and name. We hope you enjoy the new look! Please note that a new citation system will be utilized. Cases will be indexed by year and issue number, instead of volume and issue number.



Danville Christian Academy, Inc. v. Andy Beshear, Governor of Kentucky, 2020 WL 7395433 (Supreme Ct. 2020)

     First Amendment • Free Exercise of Religion

The Supreme Court turned down a request from Danville Christian Academy and Kentucky’s attorney general (Petitioners) urging the Court to lift the order of the Sixth Circuit that stayed a preliminary injunction which was granted by the District Court. The Petitioners challenged a November 18 order in which the state’s governor, Andy Beshear, amid a surge in COVID-19 cases in Kentucky, banned in-person classes through the end of the calendar year at all “public and private elementary, middle, and high schools in the state.” Later the same day, Beshear issued a second order that allowed other in-person activities, such as theaters, bowling alleys and wedding venues, to stay open, subject to limits on attendance and capacity. Petitioners argued that the November 18 order violated the Constitution’s free exercise clause, and a federal district court barred the state from enforcing the closure with respect to private religious schools that are following social distancing and hygiene guidelines. But the U.S. Court of Appeals for the Sixth Circuit reversed that decision, holding that Petitioners were not likely to win in the end because Beshear’s order was neutral and applied to all of the schools – both secular and religious – in Kentucky.
     The Petitioners urged the Court to lift the stay arguing that the Sixth Circuit should have considered the more favorable treatment that the second order gives to secular in-person gatherings, even though those gatherings “create a risk of significant outbreaks.” In urging the Court to leave the stay in place, Beshear stressed that Kentucky is currently experiencing a “deadly third wave” in the pandemic, and the Petitioners did not present any “expert testimony, scientific studies, or public health testimony” to support their contention that the public health risks from in-person schools is comparable to those posed by the activities covered by the second order issued on November 18. In an unsigned decision issued 13 days after Beshear’s response and nine days after Danville Christian filed its reply brief, the Justices denied Danville Christian’s request. They observed that Beshear’s order “effectively expires this week or shortly thereafter, and there is no indication that it will be renewed…Under all of the circumstances, especially the timing and the impending expiration of the Order,” the Court denied the Petitioners’ request but left the door open by stating that if Beshear issued a new order, the school or others could return to court to seek to have those restrictions lifted.
     Justice Gorsuch filed a dissent stating that the Sixth Circuit should have considered the challengers’ argument that both of the November 18 orders, taken together, discriminated against religion. “Whether discrimination is spread across two orders or embodied in one makes no difference,” Gorsuch stated, because “the Constitution cannot be evaded merely by multiplying the decrees.” Justice Alito also filed a separate dissent that Gorsuch joined noting that he did not agree with the decision to deny Danville Christian’s request; what’s more, he added, “no one should misinterpret that denial as signifying approval of the Sixth Circuit’s decision.” Rather, Justice Alito emphasized, the court’s ruling appears to be “based primarily on timing” and the idea that, because the winter holidays are about to begin for most schools and in-person schooling will resume next year, the justices are “therefore reluctant to grant relief that, at this point, would have little practical effect.”

Click here for the opinion.

K.E.; B.E., o/b/o T.E. v. Northern Highlands Regional Board of Education, 2020 WL 7388081 (3d Cir. 2020)

      Tuition Reimbursement

The Third Circuit vacated the District Court’s order granting Northern Highlands Regional Board of Education’s (Northern Highlands) summary judgment and remanded the matter in this case involving a claim under the Individuals with Disabilities Education Act (IDEA). After removal of a brain tumor caused T.E.’s “personality and emotional state” to become “noticeably different,” T.E. endured extensive bullying by other children at school. Ultimately, T.E.’s parents began discussions with Northern Highlands about appropriate accommodations. In connection with those discussions, Northern Highlands met with B.E. and presented a draft Section 504 Plan. B.E. acknowledged receipt of this plan by signing it on June 12 and checking off the lines indicating she received notice of the Section 504 meeting and of T.E.’s Section 504 eligibility and rights, but she declined to check the separate line indicating “agree[ment] with the Section 504 Plan as written.” Instead, she handwrote her own additional requests for accommodations on another page of the plan. Some weeks later, the 504 team sent T.E.’s parents a revised plan that did not incorporate B.E.’s additional requests and that proposed to accommodate T.E.’s disabilities and safety risks by having him “leave class five minutes early.” T.E.’s parents rejected this revised proposal “because it would have required [T.E.] to miss approximately 10% of his instructional time” and “further stigmatized him.” After extensive discussions with Northern Highlands staff and no clear path to resolution, the parents informed Northern Highlands they were “investigating private-school placements,” even recognizing that “the application process for September matriculation had [already] been completed at private schools.” One private school informed the parents that it had an opening, but only if the parents signed the enrollment contract within 24 hours, which, according to the parents, they did “to secure a safe option for T.E.” in case no resolution could be reached with Northern Highlands. At their subsequent meeting with the Individualized Education Program (IEP) team, the parents did not mention they had signed this contract. Eventually, T.E. started at the new school and the parents contacted Northern Highlands to discuss reimbursement. Northern Highlands declined to even discuss reimbursement since they wanted to see the results of a neuropsych evaluation that was conducted on T.E. Thereafter, Northern Highlands provided the parents with an offer of placement two days after it received the evaluation but the IEP “did not explicitly refer to [the doctor’s] neuropsychological report” and did not include the “majority of [the report’s 22] recommendations.” Instead, the IEP proposed the exact same safety accommodation as the previously rejected 504 Plan – that T.E. “[l]eave class 5 minutes early.” T.E.’s parents rejected this offer of placement, continued T.E.’s enrollment at the private school, and eventually filed a due process petition seeking tuition reimbursement.
     The administrative law judge (ALJ) held that Northern Highlands provided free, appropriate public education (FAPE). The ALJ reached this conclusion without ever hearing testimony or argument on the subject of FAPE, let alone on the adequacy of the specific placement offered by Northern Highlands. On appeal, the district court granted Northern Highland’s motion for summary judgment concluding that “[t]he ALJ determined that both the 504 Plan and the IEP provided T.E. with a FAPE” and “[t]he record now before the Court supports that conclusion.” The Third Circuit vacated and remanded the matter. The Third Circuit did not opine on whether reimbursement ultimately should be reduced or denied, but agreed that, in light of certain procedural irregularities and erroneous factfinding in the ALJ proceedings and the consequences of the District Court’s application of 20 U.S.C. § 1412(a)(10)(C)(iii), which allows tuition reimbursement to be reduced or denied if the parents failed to provide requisite notice and behaved unreasonably, the matter should be remanded.
Editor’s Note: Pursuant to its Internal Operating Procedures, the Third Circuit will not cite “not precedential” opinions in their reported decisions.
Click here for the opinion.

Uniontown Newspapers, Inc. d/b/a the Herald Standard, et al v. Pa. Dep’t of Corrections, 2020 WL 7502321 (Pa. Supreme. Ct. 2020)

     Bad Faith • Open Records Officer Role • Attorneys’ Fees

A majority of the Pennsylvania Supreme Court affirmed the conclusion of the Commonwealth Court that § 1304(a)(1) of the Right-to-Know Law (RTKL) permits a recovery of attorneys fees against an agency “when the receiving agency determination is reversed, and it deprived a requester of access to records in bad faith.” On September 25, 2014, The Herald Standard (Appellees) sent an email RTKL request to the Department of Corrections (DOC), seeking:

documentation of illnesses contracted by inmates and/or staff members at SCI-Fayette. I am not seeking identifying information, only the types of reported contracted illnesses and the number of inmates and staff members with those illnesses. I am particularly interested in various types of cancer reported at SCI-Fayette since its opening, as well as respiratory ailments reported. If there is also information comparing the health at SCI-Fayette with the health at other state correctional facilities, that would also be helpful.
DOC denied this request citing several exemptions under the RTKL as well as privileges. However, the (Office of Open Records (OOR) reversed and ordered DOC to disclose to Appellees “all responsive records” within 30 days. The DOC did not file a petition for review of this determination with the Commonwealth Court. DOC disclosed the records in a piecemeal fashion resulting in Appelles filing a petition for enforcement with the Commonwealth Court and seeking statutory sanctions and attorneys' fees alleging that DOC demonstrated bad faith in responding to the request for records. The Commonwealth Court sought additional information from the parties, analyzed the matter and concluded that DOC acted in bad faith by failing to search records and failing to comply with the OOR’s disclosure order. The Commonwealth Court then awarded the maximum available sanctions – $1,500 – and attorneys fees – $118,458.37 – to the Appellees. The Pennsylvania Supreme Court granted DOC’s petition for allowance of appeal to consider specifically whether the award of sanctions and attorneys fees were appropriate in this matter.
     In affirming the Commonwealth Court, the Pennsylvania Supreme Court rejected the contention that the open records officer fulfills his or her obligation simply by relying on the representations of others without inquiring as to what investigation was made or reviewing the records upon which the individual responding to the request relied. The court quoted the Legere case, “[t]here is simply nothing in the RTKL that authorizes an agency to refuse to search for and produce documents based on the contention it would be too burdensome to do so.” Accordingly, the Court agreed that DOC acted in bad faith. The Court turned to whether the imposition of attorneys' fees was appropriate in this matter. Acknowledging the ambiguity in the RTKL, the Court turned to the Statutory Construction Act and concluded that the attorneys fees are available under § 1304(a)(1) of the RTKL. Justice Wecht, joined by Justice Todd, filed a concurring and dissenting opinion disagreeing that attorneys fees are available in this instance. Justice Dougherty filed a dissenting opinion disagreeing that DOC acted in bad faith.
Click here for the opinion.

Propel Charter Schools v. Commw’lth of Pa, Dep’t of Education, et al, 2020 WL 6816418 (Commw. Ct. 2020)

      Charter School Appeal Board • Quorum

The Commonwealth Court overruled the preliminary objections filed by the PA Department of Education (PDE), the School District of Pittsburgh and the State Charter School Appeal Board (Respondents) in response to Propel Charter School’s petition seeking a declaratory judgment regarding the validity of the Charter School Appeal Board (CAB) votes. Propel is a Pennsylvania nonprofit corporation that operates a number of individual charter schools in Pennsylvania. In early May, Propel filed an Application for Consolidation (Application) with the School District of Pittsburgh (Pittsburgh) and PDE, wherein Propel sought to consolidate eight Propel charter schools as a single Multiple Charter School Organization (MCSO). Pittsburgh and PDE denied the application and Propel appealed to CAB. PDE appointed a hearing officer who granted Pittsburgh’s motion to supplement the record and Propel appealed the hearing officer’s order to CAB. Both the appeal from the hearing officer’s order and the direct substantive appeal were argued before CAB. After two CAB members recused themselves, CAB voted 4-0 to deny Propel’s appeal from the hearing officer’s order, and the matter proceeded to argument. After the two CAB members recused themselves again, CAB voted 3-1 to deny Propel’s substantive appeals from the denials of Propel’s Application. However, because a majority of the six CAB members did not vote unanimously, CAB determined that the 3-1 vote did not constitute a valid CAB action. CAB tabled the matter for a revote at the next CAB meeting. After the re-vote resulted in the same outcome, Propel eventually filed a motion to validate the 3-1 vote with CAB (Motion). Therein, Propel argued that the Charter School Law (CSL) does not require a majority vote of all CAB members to decide the matter before the quorum, and, even if the CSL requires such, the recusals effectively reduced the total number of CAB members. More re-votes were held at subsequent meetings but the outcome remained the same. Ultimately, Propel filed its petition in this court’s original jurisdiction seeking a declaration that the CAB votes and re-votes were proper, and an order for CAB to promptly issue a written decision. The Respondents filed preliminary objections asserting that: (1) Propel failed to exhaust its administrative remedies; and (2) the pleadings are legally insufficient.
     The Commonwealth Court overruled the preliminary objections. The court stated that it would not continue to thwart Propel’s efforts to obtain a decision by holding that it has failed to exhaust its administrative remedies where CAB has been unable to form a majority and render a decision on Propel’s application for over two years and overruled the preliminary objections alleging that Propel failed to exhaust its administrative remedies. Regarding the legal sufficiency of the pleadings, the court turned to the common law rule. The court opined that the question addressed by the common law rule is whether a quorum or a majority of the quorum is needed for a deliberative body to take official action. After analyzing and interpreting § 1721-A(b) of the Charter School Law, the court found that because “nothing in Section 1721-A[ (b) ] of the [CSL] indicates that the General Assembly intended to abrogate the common[ ]law rule[,]” the common law rule applies and overruled the second preliminary objection too.
Click here for the opinion.

Propel Charter Schools v. Commw’lth of Pa, Dep’t of Education, et al, 2020 WL 6816419 & 6819184 (Commw. Ct. 2020)

      Charter School Appeal Board • Collateral Orders

These two cases stem from the matter that arose in Propel Charter School at 2020 WL 6816418. However, in these appeals, Propel Charter School is asking for review of the State Charter School Appeal Board’s (CAB) denial of Propel’s motion to allow the vote of 3-1 in this matter that was filed on September 25, 2019. On October 7, 2019, The PA Department of Education (PDE) filed its response and the motion was argued at the October 22, 2019 CAB meeting. It was voted upon by the same four participating CAB members who voted 4-0 to deny Propel’s motion resulting in the November 27, 2019 order denying the motion. Propel timely appealed to the Commonwealth Court.
     The Commonwealth Court analyzed whether the November 27, 2019 order was an appealable collateral order and whether CAB’s 3-1 vote was proper. The court first determined that the order was appealable since Propel’s appeal satisfied each of the three elements of the collateral order doctrine – “the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.” Turning to whether CAB’s 3-1 vote was proper, the court mirrored the analysis set forth in Propel Charter School at 2020 WL 6816418 and concluded that CAB’s 3-1 vote was proper.
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.
Click here for the opinion.

Pa. Virtual Charter School, et al v. Commw’lth of Pa, Dep’t of Education, et al, 2020 WL 7483757 (Commw. Ct. 2020)

     Redirection Requests • Fees

The Commonwealth Court overruled the preliminary objections filed by the PA Department of Education (PDE) in response to a petition for review filed by various cyber charter schools (Charter Schools) seeking a declaratory judgment and injunction enjoining PDE from collecting a fee from charter schools any time PDE processes a redirection request under the Charter School Law (CSL). On September 4, 2019, PDE notified the Charter Schools by email that it would impose a fee on charter schools each time PDE processed a redirection request. PDE further announced that the fee would be imposed upon all requests made for September 2019. PDE did not state whether the fee would be charged before or after a reconciliation was processed or paid to charter schools or was a condition for payment of redirection for charter schools. The Charter Schools petition asserted that the redirection fee was inconsistent with the CSL since it was not specifically authorized by the CSL. PDE preliminarily objected by asserting that the redirection fee was authorized by the Administrative Code and the CSL does not limit this authorization. After analyzing both statutes, the Commonwealth Court opined that it was not clear that the Administrative Code authorized the redirection fee.
     The Charter Schools also asserted that the fee violated the separation of powers doctrine since PDE was not statutorily authorized to charge it. PDE countered that the redirection fee did not violate the separation of powers doctrine since the Administrative Code provision was adopted by the legislative branch. The Commonwealth Court was not sure if PDE’s “imposition of the [r]edirection [f]ee [was] not an usurpation and infringement upon the legislative branch, and thus not a violation of the separation of powers doctrine.”
     The Charter Schools claimed that the redirection fee was an abuse of discretion because PDE chose to impose the redirection fee on the charter schools, and not the school districts whose failure to pay the charter schools results in the charter schools needing to request the funds’ redirection. The Commonwealth Court stated, “it is not clear that [PDE’s] [r]edirection [f]ee is not an abuse of discretion” because “it may be ‘manifestly unreasonable’ for [PDE] to charge the charter schools a fee for requesting payment for services rendered, rather than the school districts, which can, as the legislature determined, more aptly afford such fees, and more importantly, avoid the [r]edirection [f]ee from the outset.” Accordingly, PDE’s preliminary objections were overruled.
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. PLEASE KEEP THEM COMING!

Shikellamy Education Association v. Shikellamy School District

Joan Parker, arbitrator

     1. Arbitrability
     2. Salary Schedule Placement

This grievance, concerning the salary schedule step placement of the school nurse, was denied. The parties are subjected to a collective bargaining agreement which covers the period of July 1, 2019 through June 30, 2024. The grievant was hired by the district as a school nurse in August 2005. She was placed on the salary schedule at Step 1 in the master’s degree column and issued a personal contract as a temporary professional employee. Prior to employment in the district, the grievant had 24 years’ experience as a licensed registered nurse although she never served as a temporary professional employee or professional employee as those terms are defined by the Pennsylvania School Code. She became certified as a school nurse shortly before she was hired in 2005. In March 2020, the union filed this grievance asserting that the grievant should be placed on Step 5 rather then Step 1 on the salary schedule based on her years of experience as a nurse. The grievance was denied at each step resulting in the matter being arbitrated.
     The district contended that the grievance was untimely filed and non-arbitrable. The district also submitted that experience as a registered nurse did not entitle the grievant to five years of salary credit when she was hired. The meaning of “experience” in the CBA was intended to mean experience in a certified position, specifically, as a professional employee or temporary professional employee.
     The union countered that the grievance was timely filed because of an ongoing or continuing violation of the CBA. In essence, each time the grievant is paid based on her incorrect placement on the salary schedule, there is a new violation of the CBA. Regarding the meaning of “experience,” the union asserted that when the grievant applied for a school nurse position, she had 24 years of experience as a licensed nurse in Pennsylvania and since the registered nursing license is required in order to work as a school nurse, professional experience related to work under that license should be considered experience.
     The arbitrator concluded that the matter was appropriate for application of the continuing violation doctrine but the available remedy was limited to the time the grievance was filed, not when the initial action occurred. However, in this case, because of the statutory requirements for credentialing and employment of school nurses, the arbitrator concluded that “experience” for purposes of placement on the salary schedule at the time of hire means experience as a certified school nurse. Accordingly, while the grievance was arbitrable, it was denied.
Click here for the opinion.


Theodore H. Watts, Esq.
We are saddened to learn of the passing on October 31, 2020, of our colleague Theodore H. Watts, of Meadville, PA, due to complications from COVID-19. Ted was an active member of the Pennsylvania School Board Solicitors Association for many years, serving as solicitor for the Penncrest School District for more than 30 years. Ted was highly respected as an attorney and for his leadership and support of numerous community activities and events, and had a memorable sense of humor. We will greatly miss seeing Ted at PSBSA activities and brainstorming with him via email and telephone, and we offer our condolences to his family and law firm. For more information about Ted’s family, life and career, his obituary can be found at this link.

Group of Hatboro-Horsham parents sue district over lack of in-person instruction
Some parents are suing the Hatboro-Horsham School District and five school board members over the lack of an in-person instructional choice. Hatboro-Horsham is currently offering only all-remote instruction with the intent to add hybrid instruction around January 11, 2021.

A copy of the Complaint is attached.

PIAA files a petition for review claiming it should not be subject to Pennsylvania’s Right-to-Know Law.
The Pennsylvania Interscholastic Athletic Association (PIAA) is seeking review by the Commonwealth Court claiming that it should not be subject to the Right-to-Know Law in a recently filed Petition for Review in the Nature of a Complaint for Declaratory and Injunctive Relief. The PIAA has been a state-affiliated entity under the law since its inception.

Click here for the Petition for Review.

PA Supreme Court issues order concerning CLE credits
On December 23, 2020, the Pennsylvania Supreme Court issued an order permitting attorneys to complete their 2021 compliance requirements with 12 credits earned through accredited distance learning programming. In accordance with adopted Continuing Legal Education (CLE) Board policy: (1) online programs conducted live in a synchronous learning environment will be treated as traditional credits; and (2) pre-recorded/asynchronous distance learning credits taken in excess of 12 credits during the 2021 compliance periods will not carry forward toward future annual compliance deadlines.

Click here for the PA Supreme Court order.
Click here for the PA CLE website.

Districts seeking solicitors
The Northern Lehigh School District in Lehigh County is inviting proposals from school law firms/attorneys interested in appointment as the district solicitor. The Request for Proposals may be found at this link. Proposals are due no later than January 15, 2021.

The Phoenixville Area School District in Chester County is inviting proposals from school law firms/attorneys interested in appointment as the district solicitor. The Request for Proposals may be found at this link. Proposals are due no later than February 15, 2021.


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 our Senior Memberships Coordinator Crista DeGregorio, at (800) 932-0588, ext. 3426, 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.


Save the date! Spring Legal Roundup
This year, due to the COVID-19 pandemic, Spring Legal Roundup will be virtual on March 24, 2021. Details on how to register will be provided in the near future.


The Continuing Legal Education (CLE) Distance Learning area of the PSBA website and distance learning platform has gone live and is now available here! A 12-session live School Law CLE webinar series kicked off in November. The series of one-credit-hour live webinars will continue on a weekly or biweekly basis, Tuesdays or Wednesdays from 9:00-10:00 a.m. through March 2021. Registration is now open for the next live installments on January 13, 20, and 26 and February 3. See below for details and register now! 

Note: Per a recent Pennsylvania Supreme Court order, these programs will be treated as traditional CLE credits, meaning they can be carried forward toward future annual compliance deadlines.

See below for details and register now!

Questions? Contact PSBA Legal Services staff at
January 13, 9:00 – 10:00 a.m.
School Law Update Part II
Presenter: Michael I. Levin, Esq., PSBA general counsel, Levin Legal Group
(1 hour substantive)
January 20, 9:00 – 10:00 a.m.
Applying Policies, Rules and Compliance Strategies to Virtual and Hybrid Instruction
Presenter: Leigh E. Dalton, Esq., Stock and Leader
(1 hour substantive)
January 26, 9:00 – 10:00 a.m.
Child Safety and Protection in the Virtual Environment
Presenter: Peter C. Amuso, Esq., Rudolph Clarke
(1 hour substantive)

February 3, 9:00 – 10:00 a.m.
Coronavirus and Your Mental Health
Presenter: Brian S. Quinn, Esq., Lawyers Concerned for Lawyers
(1 hour ethics)

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.
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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