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September 3, 2021 | ISSUE #18
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NEW! School Solicitors Monthly Exchange
PSBA is initiating a new complimentary networking program for members of the Pennsylvania School Board Solicitors Association that will provide a convenient, regular opportunity for solicitors to “gather” virtually to brainstorm and compare notes on school law issues they are dealing with. These sessions will take place on the third Wednesday of each month, 12:30 - 1:15 p.m. via Zoom, beginning Wednesday, September 15, 2021. There was great positive feedback about the value of the mass brainstorming session held in August to discuss potential litigation over masking, and many expressed a desire for a regular opportunity for such conversations. Please watch in the next several days for an email invitation to register for the series and receive instructions on how to mark your calendar and join the monthly meetings. We hope you will join us!
COVID Litigation Information 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 who test positive or have symptoms to stay home, or similar issues arising from the 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 or relevant documents. 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 Litigation Information Clearinghouse, which can be accessed at this link - https://drive.google.com/drive/u/0/folders/1KLoKpXPOQvUlEtgkt1oD90JZhKZao5uM. You can upload any information that you wish to share directly to the clearinghouse or email it to LegalServices@psba.org, with “COVID litigation information” in the subject line.
COVID Litigation Strategy Council
We have assembled a team of consulting attorneys who can serve as a back-room caucus and sounding board for any of our colleagues who end up defending COVID-related litigation or are threatened with it. Mostly via email, but also using conference call or Zoom as needed or appropriate, this team will review filed or threatened claims, provide feedback and brainstorm potential strategies. If you are interested in convening a session with the COVID Litigation Strategy Council, please email us at LegalServices@psba.org, with “Strategy Council” in the subject line.
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JUDICIAL & ADMINISTRATIVE DECISIONS
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Charlie Jones II, et al v. Pittston Area School District, 2021 WL 3673840 (M.D. Pa. 2021)
EMPLOYEE DEMOTION; DISCIPLINE; EVALUATION; TERMINATION
Termination • First Amendment Rights
The District Court granted Pittston Area School District’s (Pittston) summary judgment motion in this case asserting a claim of “First Amendment patronage/free speech & free association.” Pittston maintains three categories of school security officers: full-time, part-time and substitute. Substitute security officers fill in for full-time or part-time security guards if they are unavailable for sporting events or extracurricular activities. The plaintiffs, Jones and Toole, were both utilized as substitute security officers at Pittston. The director of security, Boone, was responsible for the utilization of substitute security officers in May 2017 and thereafter. Jones and Toole did not have a set schedule, and they were never guaranteed a particular shift or hours by Pittston. A primary election to fill school board positions was held on May 16, 2017. Jones and Toole each stated that they supported Dr. Lori Cooper as a candidate during the primary election cycle, and she was ultimately successful in the May 2017 primary and the November 2017 general election. On May 16, 2017, the day of the primary election, Boone sent text messages to Jones and Toole asking if they could work that evening. Jones declined because he was scheduled to work the primary election polls that night, but Toole was available. Boone sent Jones another text message on May 16, 2017, asking Jones if he would work a shift the following day, to which Jones agreed. The following day, Boone sent Toole text messages asking him to work on May 18, 2017, and May 20, 2017, but Toole was unavailable both days. Ultimately, Jones and Toole were dismissed from employment at Pittston, prompting the plaintiffs to initiate legal action against Pittston claiming constitutional deprivations. Pittston responded by arguing that the plaintiffs failed to establish Monell liability because: (1) there is no evidence that Pittston had a policy or custom of not utilizing substitute security officers in retaliation for their alleged political affiliation; (2) Boone, who was responsible for deciding which security guards to utilize, is not a final policymaker under Pennsylvania law; and (3) there is no evidence of record that the school board or the superintendent, who Pittston claims are Pittston’s final policymakers, approved of Boone’s decision not to utilize the plaintiffs as security officers.
The court addressed each of Pittston’s arguments individually. The court found that there was no evidence on the record demonstrating that Boone’s decision to no longer utilize the plaintiffs as substitute security officers for Pittston was part of a larger pattern showing retaliatory conduct by Pittston. The record was devoid of any suggestion that Boone decided to stop calling any other substitute security officers, other than the plaintiffs, due to their support of particular political candidates. The court also determined that Boone was not a policymaker. Although Boone had discretionary authority over the personnel decision of substitute security officers, the evidence of record and current Third Circuit precedent did not support a finding that his authority was final and unreviewable, since only the superintendent and the school board are final policymakers regarding personnel decisions. Finally, the court found that no Pittston official with final policymaking authority over personnel decisions delegated such authority to Boone, nor did any policymaking official ratify his actions. Accordingly, the court granted summary judgment in favor of Pittston.
Click here for the opinion.
Billy Ison, et al v. Madison Local School Dist. Bd of Education, 3 F.4th 887 (6th Cir. 2021)
CIVIL RIGHTS/CONSTITUTIONAL RIGHTS
First Amendment • Facial Challenge • Content-Based Restrictions
The Sixth Circuit affirmed, in part, reversed, in part, and remanded this civil rights case alleging that Madison Local School District’s Board of Education (Board) policy violated the First Amendment. In February 2016, a Madison student fired a gun and injured four students, sparking years of controversy surrounding safety in Madison schools. Approximately two years after the shooting, the Board enacted a resolution allowing staff to carry concealed weapons, and students protested. Perturbed by these developments, the plaintiffs started attending Board meetings. The Board allots time for community members to speak during each meeting. In order to “conduct[ ] its meetings in a productive and efficient manner that assures that the regular agenda of the Board is completed in a reasonable period of time ... and allows for a fair and adequate opportunity for input to be considered,” the Board enacted a Public Participation Policy. Per the policy, those wishing to participate must complete a “public participation form,” in person, at least two business days before the meeting. Only residents may participate, and they must limit their speaking time to three minutes. Participants must address the presiding officer, not Board members individually. The policy also authorizes the presiding officer to:
1. prohibit public comments that are frivolous, repetitive, and/or harassing;
2. interrupt, warn, or terminate a participant’s statement when the statement is too lengthy, personally directed, abusive, off-topic, antagonistic, obscene, or irrelevant;
3. request any individual to leave the meeting when that person does not observe reasonable decorum; [and]
4. request the assistance of law enforcement officers in the removal of a disorderly person when that person’s conduct interferes with the orderly progress of the meeting.
In March 2018, the plaintiffs attended the first meeting where the Board discussed arming teachers and addressed the student protest. One of the plaintiffs tried to speak but learned upon arrival that the policy required preregistration. At the next meeting, the Board passed the armed staff resolution. The plaintiffs, having preregistered, each expressed their disdain for the new resolution and the punishment of student protestors. The Board president responded to their criticism, emphasizing the Board’s effort to create a safe learning environment for all students and its commitment to remaining neutral on political issues. The plaintiffs spoke again at the next meeting (May 2018), making accusations and calling the Board’s justification offered at the prior meeting for punishing the student protestors “a smokescreen intended to conceal their true motivation ... to suppress all opposition to pro-gun views” and “push its pro-gun agenda.” The Board also interrupted one plaintiff twice asking him not to use the word “threatening” and asking him to stop “putting words in [the Board’s] mouth” and saying things “that are not facts.” The Board president then asked the plaintiff to stop and warned that if he continued, security would escort him out. The plaintiff continued, finishing his speech while a security officer escorted him calmly from the room. In total, he spoke just under three minutes. The next problem for these plaintiffs developed when only one of the plaintiffs completed a preregistration form in anticipation of the January 2019 Board meeting, expecting that it would authorize four people to speak; but only one was allowed to speak because the others failed to submit their own forms. Ultimately, the plaintiffs sued the Board under the First Amendment, challenging the policy’s “use of vague and undefined terms” and “the imposition of content-based restrictions on speech.” The District Court granted summary judgment in favor of the Board and this appeal followed.
On appeal, the plaintiffs challenged the policy’s restrictions on “personally directed,” “abusive,” and “antagonistic” statements, and the application of those restrictions to prevent the plaintiff from speaking at the May 2018 meeting. Second, they challenged the in-person preregistration requirement and the Board’s application of that requirement to prevent the three plaintiffs who did not register from speaking at the January 2019 meeting. Third, they challenged the policy — and the Board’s discretion in implementing it — as unconstitutionally vague. The parties agreed that the Board’s meetings constitute a “limited public forum” which “is limited to use by certain groups or dedicated solely to the discussion of certain subjects.” Based on this agreement, the court started by addressing each of the plaintiffs’ challenges. The court found the “abusive” and “personally directed” restrictions facially unconstitutional and determined that their application to the plaintiff’s May 2018 comments constituted impermissible viewpoint discrimination. This issue was remanded for purposes of determining the proper remedy for this violation. The court reviewed the in-person registration requirement as a time, place, manner restriction and affirmed the District Court. The court agreed that the preregistration requirement was the “least restrictive” and “least intrusive” means of serving the government interest of allowing the Board “to reserve time for those individuals who are most likely to follow through and participate in the meeting.” Finally, the court agreed with the District Court that the policy was not unconstitutionally vague.
Click here for the opinion.
Kristen Frankovich v. Pittsburgh Public Schools, 2021 WL 3725937 (W.D. Pa. 2021)
EMPLOYMENT DISCRIMINATION
Race Discrimination • Retaliation
The District Court granted summary judgment in favor of Pittsburgh Public Schools (Pittsburgh) in this Title VII action alleging claims for discrimination, failure to promote and retaliation. The plaintiff, who is Caucasian, has been employed with Pittsburgh since November 2007. She has been in her current position as a chief executive secretary since February 2017. The plaintiff alleges that she was the victim of discriminatory treatment from 2012 to 2017 when she was either not selected for open positions or not promoted, while African American women were. Although she believed that discrimination occurred, the plaintiff did not put her complaints in writing, raise them with human resources or file a claim with any outside agency until she filed her First Charge in March 2019 with the Equal Employment Opportunity Commission (EEOC) and the Pennsylvania Human Relations Commission (PHRC). Then, in 2018, the plaintiff sought to have her current position reclassified because she believed “that individuals were ‘being given titles that provided them with more pay’ despite doing the ‘same type of work’ and ‘said she was doing more work.’” Her position was not reclassified. Thereafter, the plaintiff informed her supervisors of her intent to file a lawsuit in January 2019. Then, in March 2019, she filed her First Charge with the EEOC. The plaintiff alleged that, shortly after filing her First Charge, several of Pittsburgh’s African American employees “displayed a marked difference in their professional interactions with [her].” They “stopped responding to [her] emails and refused to speak to her.” The plaintiff also filed a formal human resources complaint about one of her African American co-workers, prompting Pittsburgh to hire an independent third party to investigate the plaintiff’s claims. That investigation concluded that, while the co-worker’s conduct was unprofessional, there was no evidence to suggest a link between that behavior and the plaintiff’s EEOC filings. Ultimately, the plaintiff filed this legal action against Pittsburgh.
The court reviewed each of the plaintiff’s claims separately, starting with the plaintiff’s claims of discrimination. The court found these claims to be untimely because the incidents occurred more than 300 days before the plaintiff filed her First Charge with the EEOC. The court did not agree with the plaintiff that these claims could survive under the continuing violation theory since each was “individually actionable.” The court also determined that the plaintiff could not make out a prima facie case of discrimination on any remaining claims related to her reclassification request because the plaintiff provided no evidence that she made every reasonable effort to apply for reclassification. Additionally, the comparators whom the plaintiff alleged to have established a causal nexus between the plaintiff’s race and her position not being reclassified were not similarly situated. Accordingly, the court found that there was no causal nexus. Finally, the court focused on the plaintiff’s retaliation claims. The court found that she did not establish a prima facie case of retaliation. Although she engaged in protected activity, she pointed to no “materially adverse” conduct that would dissuade the plaintiff from making or supporting a charge of discrimination. Further, she failed to establish a causal connection between the alleged retaliatory actions and her protected conduct. Accordingly, the court granted Pittsburgh’s summary judgment motion.
Click here for the opinion.
Pa. Dep’t of Education v Allen Wing, 2021 WL 3720087 (Cmwth. Ct. 2021)
RIGHT-TO-KNOW LAW; PUBLIC RECORDS
Exemptions • Performance Rating or Review
The Commonwealth Court reversed a determination by the Office of Open Records (OOR) that directed the Pennsylvania Department of Education (PDE) to provide documents related to the Pennsylvania Value Added Assessment System (PVAAS). In October 2019, the requestor submitted a request to PDE seeking “PVAAS (Pennsylvania Value Added Assessment System) scores for all Algebra I [ ] teachers at the following Philadelphia Public High Schools [H.S.]: Lankenau H.S., Philadelphia Learning Academy, South Constitution H.S., Benjamin Franklin H.S., Parkway Center City H.S. and North East [H.S.].” PDE denied the request, asserting that the documents were exempt from disclosure under the Right-to-Know Law (RTKL) and the Public School Code as well as protected by the right to privacy guaranteed under the Pennsylvania Constitution. The OOR granted the appeal and ordered PDE to produce all documents responsive to the request, reasoning that PVAAS scores measure only students’ progress and are not teacher job performance ratings. PDE argued to the Commonwealth Court that PVAAS scores are a factor in public school teachers’ performance ratings, which are exempt from disclosure under the RTKL and the School Code and shielded by the Pennsylvania Constitution.
The court focused exclusively on § 708(b)(7)(ii) of the RTKL, which exempts from disclosure a “performance rating or review” of a public employee. The court determined that PVAAS scores constitute public school teachers’ performance ratings. They reached this conclusion based on § 1123(b)(ii) of the School Code, which requires that measurement of students’ performance must comprise 50% of a public school teacher’s overall performance effectiveness rating. In this case, the school district used a regulatory conversion table to assign a rating to a teacher on a scale of 0-3, “based on a rolling average of available assessment data during the most recent three consecutive school years.” Accordingly, the Commonwealth Court found that based upon the applicable statutory and regulatory provisions and credited attestations, PVAAS scores are part of public school teachers’ performance ratings and reversed the OOR.
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.
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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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Governor Wolf reinstates school mask mandate
On August 31, 2021, the Department of Health’s acting secretary issued an order directing face coverings in school entities. The order requires that each teacher, child/student, staff or visitor working, attending or visiting a school must wear a face covering indoors, regardless of vaccination status, unless an exception applies. It applies to public Pre-K-12 schools, brick-and-mortar or cyber charter schools, private or parochial schools, career and technical centers, and intermediate units as well as various childcare facilities. Click here for a copy of the order.
Many solicitors who are bombarded with questions from client school boards about their obligations to enforce this order, or the consequences of ignoring or defying it, have been contacting the PSBA legal team to brainstorm the potential ramifications their clients may need to consider in their deliberations. We have been collecting and compiling such considerations and will be uploading a document outlining them to the COVID Litigation Information Clearinghouse described in the Urgent Updates section at the top of this newsletter.
Biden administration opens civil rights investigations
The Education Department opened civil rights investigations Monday into five states for policies banning school districts from requiring masks, upping the Biden administration’s battle with Republican governors over pandemic policies for schools. Washington Post, August 30, 2021. Click here to read the full story.
The amendments to PSPC Code of Professional Practice and Conduct now final
The Professional Standards and Practices Commission’s proposed changes to the Code of Professional Practice and Conduct for Educators under 22 Pa. Code Ch. 235 were published in the August 21, 2021 Pennsylvania Bulletin in final form. These are the first revisions to the regulations since 1992. Click here for a copy of the final form regulations published in the Pennsylvania Bulletin.
Twenty states sue Biden administration over school LGBTQ protections
Attorneys general from 20 states sued President Joe Biden’s administration Monday seeking to halt directives that extend federal sex discrimination protections to LGBTQ people, ranging from transgender girls participating in school sports to the use of school and workplace bathrooms that align with a person’s gender identity. Associated Press, August 31, 2021 (Subscription may be required.). Click here to read the full story.
PSBA testifies on reporting and confidentiality issues in schools
Solicitors Vincent L. Champion, Esq. and William Zee, Esq. recently presented testimony on behalf of PSBA to the House Children and Youth Committee. The testimony focused on the issue of respecting confidentiality laws and protecting students and staff. They examined aspects of state and federal reporting and confidentiality laws, as well as legal barriers surrounding information sharing among Children and Youth Services, law enforcement and schools. Click here for a copy of the testimony.
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MARK YOUR CALENDAR
2021 School Law Workshop - October 27
School Law Workshop now will be held from 8:30 a.m.-4:15 p.m. on October 27 at PSBA headquarters in Mechanicsburg. Based on School Leadership Conference registration numbers and feedback, it is clear that a significant portion of PSBA members are not yet ready to return to in-person gatherings. The PSBA Governing Board reluctantly concluded that it is prudent to convert the scheduled School Leadership Conference to a series of virtual offerings in late October. Consequently, although the events held in conjunction with the conference will still be in person, including School Law Workshop, they have been rescheduled for October. Registration is still open, and capacity is limited to 75 attendees for this in-person event, so sign up now! Solicitor attendees may earn up to 5.5 continuing legal education credits. The PSBSA Annual Business Meeting and Award Presentation will also take place. 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
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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! 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 clelegal@psba.org.
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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 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.
Linda J. Randby, Esq.
Jo Mundis
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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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