DR. SAMUEL FRANCIS SCHOOL LAW SYMPOSIUM AND SPECIAL EDUCATION WORKSHOP WEDNESDAY. June 27, 2018 SCHOOL LAW UPDATE

Transcription

1 DR. SAMUEL FRANCIS SCHOOL LAW SYMPOSIUM AND SPECIAL EDUCATION WORKSHOP WEDNESDAY June 27, 2018 SCHOOL LAW UPDATE Carl P. Beard, Esquire Beard Legal Group, PC 3366 Lynnwood Drive P.O. Box 1311 Altoona, PA (814)

2

3 A. Arbitration /Arbitrators SCHOOL LAW UPDATE 1 Upper Merion Area School District v. Teamsters Local #384, 2017 WL (Pa. Cmwlth. 2017). In this case, Commonwealth Court affirmed the trial court s order denying the school district s petition to vacate an arbitration award involving a school bus driver who tested positive for amphetamines. In the case, the bus driver decided to try her son s Adderall in order to ascertain why her son lost his appetite. The CBA provided in part that employees can be immediately suspend or discharge for [d]rinking or consuming illegal drugs during working hours, including lunchtime, or being under the influence of liquor or drugs during work time, including lunch time. Ultimately, the Arbitrator determined that the punishment was too severe and directed the District to reinstate the bus driver to her position conditioned on evaluation by a substance abuse counselor and drug testing. The trial court affirmed the Arbitrator s Award, rejecting the District s argument that the Arbitrator s Award was contrary to a well-defined, dominant public policy of protecting children from exposure to illegal drug use. In upholding the decision of the Arbitrator and the trial court, Commonwealth Court concluded that the arbitrator s award does not pose an unacceptable risk that it will undermine the public policy at issue or cause the District to breach its lawful obligations or public duties. Consider Judge McCullough dissent that states: A school district should not have to wait until a school bus driver ingests other illicit drugs, whether or not in the form of a prescribed or unprescribed narcotic substance, to the point where he/she becomes so impaired that the safety of school children is jeopardized and/or an accident occurs before invoking this public policy exception. Neshaminy School District v. Neshaminy Federation of Teachers, 2017 WL (Pa. Cmwlth. 2017). In this particular case, the employee had been terminated for creating a hostile working environment for his fellow teachers. At arbitration, a coworker testified that: Katz directed sarcastic and sexually explicit comments toward her all day, every day, which made her uncomfortable. (Hr g Tr. at , 122, R.R. at 100a, 102a.) In particular, Co-teacher recalled when Katz: invited [her] to sit on his lap in lieu of a chair ; told her it was taking all of his self-control not to kiss her ; and responded [s]o, I shouldn t slap your a[**] when Co-teacher specifically asked him to stop his behavior because their 9th grade students were starting to comment about a possible relationship between the two. (Award at 23.) Co-teacher characterized Katz s behavior as being so continuous that she... consider[ed his comments] as white noise or mere background to her work environment. (Id.) Co-teacher explained that she felt helpless and did not complain because she was new on the job and had to rely on Katz for subject matter content for which she was unfamiliar and, therefore, had to laugh off his commentary because she wanted a job. 1 Resource materials include Pennsylvania School Boards Association [ School Law Information Exchange and Public Sector Arbitration 1

4 Interestingly, the Arbitrator reinstated the employee with back pay with a 20 day suspension requiring the employee to undergo reasonable sexual harassment training. The trial court vacated the arbitration award and the case was appealed to Commonwealth Court. After reviewing the entirety of the case and the Philadelphia Housing Authority, Westmoreland Intermediate Unit, and City of Bradford cases, Commonwealth Court agreed with the district and upheld the trial court s decision. Query: Who are these arbitrators? Gateway School District v. Teamsters Local 205, 2018 WL (Pa. Cmwlth. 2018). OPINION NOT REPORTED. Secretary entered a half day in for sick. When eventually confronted she stated that she used the day to attend her granddaughter s school function. HR Director asked questions of grievant and alluded to possible consequences for leaving but the grievant left work for the afternoon either way. The employee was suspended pending dismissal. Arbitrator concluded there were mitigating factors from upholding the discipline to include grievant s truthfulness in telling the actual reason for the leave. Arbitrator reduced the discipline to a 1 day suspension. Trial court denied the District s request to overturn and Commonwealth Court upheld the trial court stating that the CBA did not forbid the Arbitrator to depart from the discipline chosen by the school district or to weigh mitigating factors and those mitigating factors did not conflict with the CBA. Gateway School District v. Gateway Education Association/PSEA/NEA, 2018 WL (Pa. Cmwlth. 2018). OPINION NOT REPORTED. Another case in the long list of cases where Commonwealth Court denied the School District s Petition to Vacate an Arbitration Award, in this case dealing with retiree health insurance coverage along with same sex marriage coverage. Northern Cambria School District v. Northern Cambria Education Support Professional Association, PSEA/NEA, 2018 WL (Pa. Cmwlth. 2018). Commonwealth Court reversed the trial court s order vacating an arbitration award in this dispute involving the hiring of a full-time aide. The court concluded the award drew its essence from the terms of the CBA, and the trial court erred in concluding otherwise. Otto-Eldred School District and Otto-Eldred Education Association, 6/15/15 (Ronald F. Talarico) In this case, the Arbitrator sustained the grievance in part in this dispute involving the termination of a tenured teacher. In this case, the Arbitrator found numerous deficiencies in the school district s rating tool and the way the District completed the As a result the Arbitrator concluded the grievant did not receive any valid ratings for the school year, so she could not be terminated for unsatisfactory teaching performance. With regard to the other allegations, the arbitrator concluded that the alleged performance deficiencies related to the grievant s competency and teaching performance, and pursuant to Section 1123(h)(4) of the School Code, each of these individual allegations of a lack of proficiency must be dismissed for failure to be supported by a completed rating tool. Finally, noting that even if the charges could be independently considered, none of the infractions were particularly severe or egregious in nature. The arbitrator ordered the school district to reinstate the grievant without payment of any lost wages. 2

5 B. Labor and Employment Issues Jones v. School District of Philadelphia, TTA No (Secretary of Education, May 1, 2018). This is an extremely relevant case regarding an employee s obligation to mitigate damages. On remand, the secretary of education ordered the district to pay Ellis Jones $4,303 for lost compensation. The district terminated Jones from his teaching position effective Dec. 15, 2010, as the result of inappropriate statements made by him in his classroom. Following his termination, he held a few different positions, but did not make an effort to obtain similar employment. In 2014, he obtained employment with the Delaware County Intermediate Unit. On Nov. 9, 2016, after Commonwealth Court concluded his termination was a nullity and the secretary of education ordered his reinstatement, the district offered to reinstate Jones to his teaching position he elected not to return. Proceedings then commenced to determine the amount of backpay he was entitled to. Jones requested $394, in lost compensation from Aug. 14, 2009, through Sept. 1, The secretary concluded that the correct timeframe for the calculation of damages ends on Nov. 9, 2016, the day on which the district offered reinstatement; and, that his wages must be calculated at the master s degree pay level, since he did not obtain his doctorate degree until after the relevant timeframe. The secretary also concluded that Jones failed to properly mitigate damages, since the evidence established that he was not diligently searching for employment at any time and there were several math and special education teaching positions available to him. The secretary ordered the district to pay him $4,303, subject to legal and contractual deductions, which represents the difference between what he would have earned and his actual earnings for 2014 and Vladimirsky v. School District of Philadelphia, TTA No (Secretary of Education, May 1, 2018). Another case regarding the obligation to mitigate damages. King v. Unemployment Compensation Board of Review, 2018 WL (Pa. Cmwlth. 2018). OPINION NOT REPORTED. Commonwealth Court affirmed the Unemployment Compensation (UC) Board of Review s (board) order affirming a finding that the claimant was ineligible for unemployment compensation benefits because he was discharged for willful misconduct. At the UC hearing, the District presented the testimony of two personal care aides, a paraprofessional a teacher and a classroom aide, regarding the employee s treatment of students with intellectual disabilities which include excluding the student from the classroom, pushing the student s wheelchair in an aggressive manner and denying the student hot food for disciplinary purposes. Observation: Kudos to the school district, the referee, the UCBR as well as Commonwealth Court for getting this one right. Powers v. Unemployment Compensation Board of Review, 2018 WL (Pa. Cmwlth. 2018). OPINION NOT REPORTED. Another case of willful misconduct. The aide was discharged for failing to adhere to the District s cell phone usage policy as well as legitimate supervisory directives. Anderson v. North Star School District, 2018 WL (Pa. Cmwlth. 2018). OPINION NOT REPORTED. In this case, the district entered into a contract with Anderson to cover the period 7/1/2015 through 6/30/2019. In June 2016 they hired an outside firm to operate the food service facilities. 3

6 Anderson claimed there was an enforceable agreement between the parties and a breach of contract claim existed and the language in her plan could be interpreted as creating a contract for her services pursuant to Section 514. Take Away: Boards need to consult with their Solicitors before attempting to replace employees in the District who have executed contracts or compensation plans and replacing them with outside third parties or vendors. Kegerise v. Delgrande et al., 2018 WL (Pa. 2018). The Pennsylvania Supreme Court reversed the order of the Commonwealth Court reinstating a superintendent with back pay and benefits. While a somewhat convoluted situation, the Pennsylvania Supreme Court stated that the Notice and Hearing procedures for removal under Section 1080 of the Public School Code does not require the procedure apply where a school board accepts the superintendent s resignation. Moody v. Atlantic City Board of Education, 870 F.3d 206 (3rd Cir. 2017). The Third Circuit Court of Appeals held that the district court erred in concluding that the custodial foreman was not a female custodian s supervisor and prematurely considered the availability of the Ellerth/Faragher defense. The case provides a good analysis of who is or may be considered a supervisor for purposes of applying an Ellerth/Faragher defense. Under the Ellerth/Faragher defense, an employer can establish an affirmative defense to liability for a supervisor s creation of a hostile work environment by showing (1) that it exercised reasonable care to prevent and promptly correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities that were provided. The defense is not available where a plaintiff has experienced a tangible employment action. Because there was a question whether Moody s work hours had been reduced after her rejection of Marshall s advances, the court vacated the district court s grant of summary judgment. Lynch v. Ridgway Area School District, 2018 WL (W.D. Pa. 2018). Plaintiff was an elementary teacher for 25 years. She had numerous performance and improvement plans and received 2 unsat performance ratings. Although grieved, she was unsuccessful, and she was terminated after a second unsat rating and replaced with a younger teacher. Plaintiff subsequently filed a claim for retaliation and discrimination under the ADEA. While Plaintiff was able to establish a prima facie case addressing all four necessary elements of an age discrimination case, the burden shifted to the school district to articulate a legitimate, nondiscriminatory reason for plaintiff s termination. The Court found the school district satisfied that burden by documenting a record of performance issues in unsatisfactory evaluations, disciplinary letters and performance improvement plans. Bradley v. West Chester University of the Pennsylvania State System of Higher Education, 2018 WL (3rd Cir. 2018). Bradley was employed by the Director of Budget and Financing at the University. As they were going through the budgetary process, Bradley was instructed to increase a line item by several million dollars showing a deficit instead of a surplus. When she questioned the practice she was told that report was a political document and if you don t present this deficit, your appropriation money is at risk. She then discussed her concerns with the University Budget Committee expressing her belief that the PASSHE-requested alterations were unethical and quite frankly, [possibly] illegal. Her supervisor expressed displeasure with her comments. At the next budget 4

7 committee meeting, the employee circulated a memorandum document her concerns. Two years later she attended a meeting and after presenting her supervisor s preferred budget, she presented an alternate budget, which she believed presents reality. A few weeks later she was told that she was not the cultural fit for the university and that her contract would not be renewed. Ms. Bradley claimed that her termination was unconstitutional speech protected by the First Amendment. The lower court and Third Circuit Court of Appeals affirmed that Ms. Bradley s speech was not constitutionally protected and that her supervisor and the University and PASSHE were entitled to immunity. Blake v. State Civil Service Commission, 2017 WL (Pa. 2017). (Veterans Preference Act) The Pennsylvania Supreme Court held that an individual who only attended three semesters at West Point and never performed any subsequent military service is not entitled to veterans preference. Erdlen v. Lincoln Intermediate Unit No. 12, 2017 WL (Pa. Cmwlth. 2017). In this case, a certified school psychologist was terminated for persistent negligence in the performance of duties and willful neglect of duties and failure to comply with school laws. The certified school psychologist was given specific direction as to how he should conduct himself. It is interesting to note in upholding the employee s dismissal, the Court stated, in discussing the instances of unprofessional conduct, that Erdlen s supervisors clearly articulated to Petitioner what he could not do, yet Petitioner persistent in doing just that, with full awareness and knowledge that which he had done was forbidden. Take Away: While this is an Unreported Decision, it is just another decision in a long line of decisions that go to the point of obey now, grieve later; employees have to follow legitimate supervisory directives or there can be significant consequences. Sundberg v. DiRocco, 2017 WL (M.D. Pa. 2017). Employee had been the school s social studies teacher for 25 years as well as the boys track coach and the head cross-country coach. He retired from teaching in 2012, but continued to coach until the end of the school year, when the district posted all head coaching positions for the following school year. The employee brought claims under the First and Fourteenth Amendments claiming that his nonrenewal violates same. At the end of the day, the Court held that in all aspects, the employee was speaking in his official capacity as a coach and not as a private citizen. Judge v. Shikellamy School District, 2017 WL (M.D. Pa. 2017). The District Court granted summary judgment in favor of the defendant school district, finding that the evidence presented revealed no genuine dispute that the plaintiff, an elementary school principal, had voluntarily chosen to resign rather than face termination proceedings arising from a DUI incident. The principal claimed she was deprived of her property interest and continued employment. In a procedural due process analysis, a resignation may be found to be involuntary only if obtained through coercion or duress, or through the employer s misrepresentation of material facts. In this particular case, the court concluded that based on the evidence presented, no reasonable jury could conclude that the principal s resignation was involuntary on either basis. NOTE: Appeal filed. Briefing was completed May

8 Thomas Jefferson University Hospitals, Inc. v. Pennsylvania Department of Labor and Industry, 2017 WL (Pa. 2017). The Pennsylvania Supreme Court reversed Commonwealth Court s decision which permitted a recently terminated employee to review her personnel file pursuant to the Inspection of Employment Records Law. That law permits current employees to inspect their personnel files pursuant to established procedures. The definition of current employee includes those currently employed, those laid off with reemployment rights, and those on a leave of absence. In a prior case, Commonwealth Court held that an individual who was terminated from employment two years before the request to inspect had no right to inspect her personnel file. It suggested that a person who is terminated and who contemporaneously or soon after termination seeks to inspect his or her personnel file should be treated as a current employee under the law. For twenty years, the Department of Labor used this dictum to require employers to permit terminated employees to inspect their personnel files within thirty days of termination. The Supreme Court held the law is clear and that once employees are terminated without recall rights, they have no right to inspect their employment files. C. Transgender and Anti Gay Bias Third Circuit Court of appeals upholds Eastern District of Pennsylvania Decision allowing Boyertown Area School District Transgender Policy A panel of Judges sitting on the United States Court of Appeals for the 3 rd Circuit have unanimously upheld an August 25, 2017 Opinion from the Eastern District of Pennsylvania allowing Boyer Town School District s inclusive Transgender Policy to remain in place. In a preliminary one-page Opinion, the panel agreed with the Lower Court that Plaintiffs had not demonstrated a likelihood of success on the merits and had not established that they would be irreparably harmed if the Plaintiffs Motion to Enjoin the District s Policy was denied. The Court further stated that a Formal Opinion would follow. This Decision should make it clear to School Districts in the 3 rd Circuit and across the State of Pennsylvania that Transgender Policies should be inclusive of students gender identities. Further, Districts should not prevent transgender students from using the restroom or locker room of their choice. The Western District, Middle District and Eastern District of Pennsylvania, along with the parent 3 rd Circuit Court of Appeals have all recently made or upheld decisions in favor of transgender students and their right to use the restroom or locker room of their choice. Evans v. Georgia Regional Hospital, 850 F.3d 1248 (2017) The United States Supreme Court recently declined to review an 11 th Circuit case affirming the dismissal of a lesbian security guard s lawsuit alleging her employer violated Title VII by firing her over her sexuality. Whether Title VII bars anti-gay bias has been an open question that has recently been attempted to be answered by a few Federal Circuits in the United States. Earlier this year, the 7 th Circuit broke with precedent to find an Indiana professor could allege her employer discriminated against her because she is a lesbian. Previously, in every other Circuit that considered Title VII of the Civil Rights Act of 1964 found the law did not cover discrimination based on sexual orientation. However, several Circuits have recognized claims of discrimination and/or harassment on the basis of sexual orientation as establishing claims of sex discrimination based on sex stereotypes. 6

9 Ms. Evans, the employee at the center of the 11 th Circuit lawsuit, and her attorneys still remain optimistic about their next steps. Ms. Evans attorney, Gregory Nevins, was quoted as saying, A denial of certiorari doesn t mean anything on the merits. Ms. Evans and her legal team may be encouraged by a case in the 2 nd Circuit facing the same issue. That case features a former skydiving instructor whose estate alleges he was fired illegally because of his gay lifestyle. Plaintiffs in these cases suggest three rationales for a finding that Title VII blocks employers from discriminating against gay workers: (1) that it treats employees who date members of the same sex differently than it does employees who date members of the opposite sex; (2) that it treats workers differently based on the sex of those they date; and (3) that it punishes gay workers for failing to meet the stereotype that they date members of the opposite sex. Plaintiffs often rely on a 1989 United States Supreme Court Ruling in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) that ruled Title VII bars employers from discriminating against workers who don t fit sexual stereotypes. For instance, women who dress in garb traditionally reserved for men, or vice versa, or men and women who have mannerisms that are typically associated with the opposite sex, cannot be discriminated against simply because their behaviors do not fit sexual stereotypes. The 7 th Circuit Opinion in Hively v. Ivy Tech Community College noted the common sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex persuades us that the time has come to overrule our previous cases that have endeavored to find and observe that line. The 7 th Circuit also cleverly relied on the United States Supreme Court s ruling in the 1967 case, Loving v. Virginia, 388 U.S. 1 (1967) which found that laws barring intermarriage of different races violated the Constitution s Equal Protection clause. Because changing the race of one partner in the marriage would change the legality of the union according to Loving, it is parallel to changing the sexual preference of one partner in order to fit within the confines of Title VII and its limitations on sexual discrimination. While it is generally odd for the United States Supreme Court to deny certiorari when two Circuits are split on an important federal question as they are here, the Court may be biding its time for the Circuits to flush out other legal issues regarding Title VII and discrimination based on sexual orientation. It is possible the United States Supreme Court is waiting on their decision and for other circuits to weigh-in before establishing precedent by hearing a case of their own. It is also possible that Congress will pass legislation that clarifies the scope of Title VII and does not rely on Circuit Courts to interpret the language that lacks explicit guidance on sex-based discrimination and the limits of it. In addition to a Circuit split on the case, amici briefs have also pitted the Department of Justice and the Equal Employment Opportunity Commission against each other regarding how Title VII should be interpreted. The EEOC recently obtained a victory in the United States District Court for the Western District of Pennsylvania. The EEOC represented a telemarketing employee of Scott Medical Health Center in Pittsburgh who claimed he quit because of sexual orientation discrimination. It is also important to note that the law in the 3 rd Circuit, covering Pennsylvania, Delaware, and New Jersey, remains that Title VII does not cover discrimination based on sexual orientation. That decision has held up since it was heard in 2001 in Bibby v. Philadelphia Coca-Cola Bottling Company. Despite this 2001 decision by the 3 rd Circuit in Bibby, its application has been called 7

10 into question by EEOC v. Scott, decided in November 2016 in the Western District of Pennsylvania. On February 26, 2018, the 2 nd Circuit Court of Appeals, in Zarda v. Altitude Express, extended Title VII protections to sexual orientation. The 8 th Circuit Court of Appeals, in the case of Horton v. Midwest Geriatric Management, LLC, is poised to be the most recent Circuit Court of Appeals to considering weighing in on whether Title VII bars sexual orientation discrimination. A decision is expected in the very near future. As this issue works toward final resolution in the courts or Congress, employers must still remain cognizant of obligations not to discriminate on the basis of sex, including sexual stereotypes. Stay tuned for future newsletters that will track these cases and when the Supreme Court or Congress may decide to speak out on the issue finally and for all. D. State Created Danger Theory D.M. v. Easton Area School District, 2017 WL (E.D. Pa. 2017). In this particular case, a student brought suit under a state created danger theory. In this particular case, the student was struck when they told another student to stop teasing an autistic student. The same student jabbed the student who was struck before in the cheek with a pencil. The student and his guardian subsequently filed suit alleging the school district violated DM s right to bodily integrity under Section According to existing case law, a state actor does not have an affirmative duty to protect individuals subject to the special-relationship and state-created danger exceptions. According to the Court, DM could not show that the state-created danger exception applied. The plaintiffs failed to plead all four elements of a state-created danger claim the harm to D.M. was not foreseeable (prior attacks were sporadic in time and place); the school district did not act with a degree of culpability that shocks the conscience (the school reported the incidents and did not act with deliberate indifference to D.M. s safety); and the school district did not affirmatively use its authority in a way that created a danger to D.M. or rendered him more vulnerable to danger. In addition, the plaintiffs failed to establish municipal liability stemming from a policy or custom or based on the failure-to-train theory. K.E. v. Dover Area School District and Lincoln Intermediate Unit, 2017 WL (M.D. Pa. 2017). The Court partially granted and partially denied summary judgment motions brought by the defendants in this Title IX sexual abuse case involving a teachers sexual abuse of a student. K.E. alleged a music teacher, Puterbaugh, sexually assaulted her over a four-year period. She made her first report in 2002 when she was in eighth grade. She informed two Dover teachers that Puterbaugh kissed and touched her. In April 2013, while police were conducting a criminal investigation involving other complaints against Puterbaugh, they learned of K.E. s complaints. K.E. s claim was timely. Under Pennsylvania law, civil actions arising from childhood sexual abuse may be brought within 12 years of the person reaching age 18. K.E. was 26 and the court found she timely filed this and the defendants arguments that this is limited to cases against perpetrators was incorrect. The Court held that a jury could find Dover was deliberately indifferent when handling K.E. s reports of abuse. 8

11 (NOTE: This case was reported in our 2017 Update) When the District filed a Motion to Dismiss, the prior case was reported at 2016 WL (M.D. Pa. 2016). Kobrick v. Stevens, Lakeland School District, Western Wayne School District, et al., 2017 WL (M.D. Pa. 2017). In this case, the Middle District Court granted motions filed by the school districts and administrators involving an eight-month-long sexual relationship between the student when she was a senior in high school and her former music teacher (Stevens). The case provides a good overview of the law. As in a lot of these cases, the educator was criminally charged with institutional assault, unlawful conduct and corruption of minors. He pled guilty to one count of corruption and served 23 months in prison. Ultimately a civil action was commenced against the teacher, the two school districts and their administrators. At the end of the day, the Court held a reasonable jury could not conclude the districts and administrators had actual knowledge of the relationship. E. Student Discipline Davis v. Quaker Valley School District, District Court Memorandum Opinion 2016 WL (W.D. Pa. 2016). The District Court entered summary judgment on behalf of Quaker Valley in this case alleging race- based discrimination for allegedly imposing more severe discipline on her son, E.D., than was imposed on other students for similar behavior and denying the mother, Davis, access to the school. Davis was unable to meet all the legal requirements for establishing a prima facie case of illegal discrimination under Title VI because she could not show that similarly situated students not in E.D. s protected class were treated less harshly than E.D. She did not establish that any other students in the classroom demonstrated the number and degree of incidents of misconduct as E.D. Even if she had made out a prima facie case, Quaker Valley had a legitimate, non-discriminatory reason for disciplining a student for significant misbehavior in the classroom. Davis was not subjected to retaliation when, knowing the rules about classroom observations, she tried to conduct an observation without first scheduling it. She indicated an unwillingness to interact directly with the teacher, so his keeping detailed notes about E.D. s behavior in order to keep the principal and other apprised was not retaliatory. As E.D. s misbehavior escalated, so did Quaker Valley s responses, but this did not amount to retaliation and was simply an effort to address E.D. s misconduct. NOTE: The Third Circuit Court of Appeals Opinion, in a nonprecedential opinion affirmed the decision of the lower court WL (3rd Cir. 2017). B.L. v. Mahanoy Area School District, 2017 WL (M.D. Pa. 2017). In this case, the student had been dismissed from the cheerleading squad for off-campus conduct. The court granted plaintiffs motion for a preliminary injunction in this case involving a student dismissed from the cheerleading squad for profane out-of-school speech. B.L., a high school sophomore and member of the junior varsity cheerleading squad, posted a Snap featuring a photo of her with and a friend holding up their middle fingers with the text, 9

12 fuck school fuck softball fuck cheer fuck everything superimposed on the image. B.L. took the Snap, which did not specifically mention or picture the high school she attends, at a local convenience store over the weekend. B.L. shared the Snap with her friends; it was not available to the public. The cheerleading coaches had developed rules governing participation in the cheerleading program, including the following: Please have respect for your school, coaches, teachers, and other cheerleaders and teams. Remember, you are representing your school when at games, fundraisers, and other events. Good sportsmanship will be enforced, this includes foul language and inappropriate gestures.... There will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet. Five days after B.L. sent the Snap, the cheerleading coach informed B.L. that she was dismissed from the cheerleading squad because of her use of profanity. The coach also told her that her Snap was disrespectful to the coaches, the school, and the other cheerleaders. After several attempts to get the school district to reconsider B.L. s punishment, B.L. s parents filed a complaint accompanied by a Motion for a Preliminary Injunction. The plaintiffs argued that [s]chools cannot punish students for private, out-of-school speech that does not cause a substantial, material disruption to school activities, Reviewing the decisions rendered by the U.S. Supreme Court and the Third Circuit Court of Appeals, the court noted that while courts have allowed schools to punish a student for out-of-school speech that was reasonably expected to substantially disrupt the school, schools have no power to punish lewd or profane speech when it occurs outside of the school context. The court concluded that the plaintiffs were likely to succeed on the merits of the First Amendment claim because B.L. s speech occurred outside of the school context. The plaintiffs also established the other elements necessary for a preliminary injunction. Commonwealth v. N.M.C., 2017 WL (Pa. Super. 2017). The court vacated the student s conviction for disorderly conduct. The student, N.M.C., used his cell phone to video-record a fight in the boys bathroom at Dubois Area Middle School. N.M.C. sent the video via text message to his girlfriend and one other student. N.M.C. s girlfriend sent a copy of the video to the assistant principal who was investigating the fight. N.M.C. admitted to recording the fight in his second statement. He was cited for disorderly conduct creates a hazardous or physically offensive condition and a magisterial district judge found him guilty. After a trial, the trial court sentenced N.M.C. to 90 days probation and community service, he was also required to pay a fine and court costs. On appeal, N.M.C. argued that the evidence was insufficient to convict him of disorderly conduct. The issue before the court was whether N.M.C. created a hazardous condition or a physically offensive condition by video-recording the incident and disseminating the video to two other students. The court noted that the basis for the trial court s decision was that N.M.C. created a hazardous condition by text messaging the video to two students, because the video could have been further disseminated to other students and thereby encourage future fighting. The court concluded that that the Commonwealth failed to show that N.M.C. s dissemination of the video to two people created or risked creation of a hazardous condition or a physically offensive condition, and the trial court s conclusion stretches the disorderly conduct statute too far. The court left for another day the question of whether wider dissemination of such material via social media could create a hazardous condition. 10

13 F. Students Hostile Environment Goodwin v. Pennridge School District, 2018 WL (E.D. Pa. 2018). The court denied the defendants motion to dismiss the plaintiff s federal claims brought pursuant to Title IX and Section The plaintiff s claims stem from a rape that occurred outside school hours and off school grounds during her sophomore year of high school, and subsequent verbal and physical harassment at school. Both the plaintiff and her mother reported the rape, the ensuing harassment and threats, and her Post-Traumatic Stress Disorder (PTSD) to school officials on numerous occasions. The school officials did intervene, but their actions did not end the harassment. The court concluded the plaintiff stated a claim for Title IX liability, focusing its discussion on whether the harassment was so severe, pervasive, and objectively offensive that it deprived the plaintiff of her educational benefits and whether the school district was deliberately indifferent to the harassment. In her complaint, the plaintiff alleged that she was subjected to physical and verbal harassment nearly every day during her junior year. The court noted the defendants exacerbated the hostile environment when they continued to allow the plaintiff s harassers to be near her. The school district argued that the plaintiff failed to show deliberate indifference because the actions it took in response to plaintiff s complaints were not clearly unreasonable. The court noted that defendants responses did not address the harassment, and in some cases, were not even designed to do so. Thus, the court concluded she could proceed on her Title IX claim. The court also concluded that her Title IX claim did not subsume her constitutional claims, and she could proceed with her Section 1983 claims for a hostile educational environment, failure to train, and supervisory liability. The court dismissed her state law claims. JW v. School District of Philadelphia, No of 2015 (5/30/2018) Philadelphia Court of Common Pleas Judge awards $500K to the family of a female student who is regularly bullied at three schools within the Philadelphia School District. Judge Gene Cohen in a non-jury trial found for the family after a three week trial. Judge Cohen ruled that this school district s conduct towards the child and failing to remedy the ongoing reports of bullying and harassment, rose to the level of deliberate indifference and violated the Pennsylvania Human Relations Act which prohibits sex discrimination. According to the Court s decision containing findings of fact and conclusions of law; the student was first bullied, taunted and teased while in elementary school. Despite reports by the parent, the situation did not remedy itself and according to the Judge the school district had no procedure to remedy the discrimination. The student transferred to a new school for sixth grade, where the same conduct that she had experienced before continued on in this school. The conduct continued in the new school and the mother transferred her daughter mid-year to another new school within the district. According to the findings of fact, the parent once again had reported the situation to administrative staff and the response to the situation appeared to be non-existent. Judge Cohen found again that the school was deliberately indifferent to the discrimination and the bullying suffered by the student. The student ultimately graduated to high school; the same conduct that she experience in elementary and middle school continued. According to the record the district was unable to remedy the situation and she ultimately removed her child to a cyber charter school. Judge Cohen conducted an extensive hearing over a three week period of time and ultimately rendered a decision containing 60 findings of fact and approximately 21 conclusions of law. According to the Judge, the District s Anti-Bullying policies in place throughout the student s time in its schools did not address student on student sexual harassment to which the student was subjected. According to the Judge school staff responsible for overseeing the student s safety and 11

14 wellbeing were not even aware of the policies that were supposed to be in place for procedures to implement those policies. As a result, the student suffered numerous medical conditions to include depression and anxiety. In the conclusions of law portion of his decision, the Judge wrote Student on student sexual harassment, bullying based upon gender presentation met with deliberate indifference by school administrators is a violation of the Pennsylvania Human Relations Act because it is discrimination based upon sex. The Judge indicated the school district was liable to the student for discrimination under the PHRA because the school was deliberately indifferent to the discrimination suffered by the student. Judge Cohen found the procedures for dealing with student on student sexual harassment were non-existent and that the district was repeatedly given verbal and written notice the harassment the student was receiving and therefore it had actual knowledge of harassment. As a result, the Judge determined that damages from humiliation and mental anguish were available to the student and parent under the Pennsylvania Human Relations Act. Accordingly, the Judge awarded Plaintiffs damages in the amount of $500k plus attorney s fees and costs. It is believed that this ruling by Judge Cohen is the first time a state court in Pennsylvania has recognized a cause of action under the Pennsylvania Human Relations Act for student on student bullying/harassment. Observation: This case demonstrates a tragic set of facts for this student over a considerable period of time. Based on the record, the district was held liable because how people who have the power to act to remedy the situation did not undertake steps to do so. The district was found deliberately indifferent, the result of not undertaking steps to either investigate or take appropriate corrective action. Most, if not all, school districts in the Commonwealth of Pennsylvania have policies and procedures in place to address these types of allegations as they arise. The takeaway for school districts is that when these types of issues are reported they need to be investigated immediately, documented and corrective action taken, if warranted. If these simple procedures are followed districts more likely than not will not be staring down the prospects of a huge award for a violation of Pennsylvania Human Relations Act or other statutes such as Title VI and/or Title IX. G. Furlough/Demotion Burnett v. School District of Philadelphia A.3d (2017) 2017 WL (Cmwlth.Ct.2017) Mr. Burnett was reassigned from a high school chemistry teacher to middle school general science teacher by the District. He appealed to the Secretary of Education and the Secretary held that such a reassignment was not a demotion in type of position and therefore the District did not violate the School Code in denying his request for hearing pursuant to Section 1151 of the Public School Code of 1949, as amended. Exhibits were submitted to the Secretary of Education and despite the employee s request to testify, the Hearing Examiner denied the request choosing instead to accept only the written submissions and oral arguments. Citing two prior cases, Appeal of Wesenberg, 346 Pa A.2d 151 (1943) and Appeal of Santee, 397 Pa. 601, 156 A.2d 830 (1959), the Secretary of Education held that Burnett s transfer to a full time position teaching younger students was not a demotion because such position is of no less importance, dignity, responsibility, authority, prestige or compensation. The Secretary further noted that there is nothing in the School Code to distinguish between the status of professional employees in junior and senior high schools and that how a change of position 12

15 might affect the sensibilities or peculiar tastes or talents of an individual teacher did not render the change a demotion. At the end of the day, the Secretary of Education concluded as follows: The record contains no factual allegations that, if proven, would support a conclusion that the position to which Burnett was reassigned... is not the equivalent in rank and class to his former position. At that point, the Secretary declined to remand the matter for a hearing and dismissed Burnett s appeal. Interestingly, on appeal to Commonwealth Court, Burnett argued Section 1151 gives a professional employee who claims he has been demoted the right to a hearing to determine whether a demotion in fact occurred and this write is well supported by precedent. According to his argument, it is the employee s claim of a demotion that triggers the right to a hearing, regardless of whether a demotion has in fact occurred. Based upon this, Commonwealth Court ultimately concluded that the procedures set forth in the School Code must be strictly followed. According to Commonwealth Court, the right to a hearing arises when a professional employee claims he has been demoted in type of position and/or salary and it is the school board s duty to grant him a hearing. According to Commonwealth Court (Burnett v. School District of Philadelphia A.3d (2017) 2017 WL (Cmwlth.Ct.2017)), the employee s entitlement to a hearing is triggered by the professional employee s claim or belief that there has been a demotion irrespective of whether a demotion has, in fact, occurred. The school district argued that they would be financially impacted, harmed or their resources would be drained every time someone requested a hearing. The Court was not sympathetic to that claim. At the end of the day, Commonwealth Court held that the school district s contention there has been no demotion goes to the merits of whether or not a demotion in fact occurred and is not a justification for denying a hearing on the issue. In the end, Commonwealth Court reversed the Secretary of Education and remanded the matter back to the Secretary to remand the matter back to the school district to hold a hearing in accordance with the foregoing opinion. So what does this mean for schools? It means at the end of the day if someone claims they were demoted, you need to jump through the hoops of holding a hearing and ultimately determining whether they were demoted or not. This case is just another example of the degree to which Commonwealth Court will adhere to the strict requirements of the School Code in dealing with either demotions and/or teacher dismissals as we saw in the Jones case. Northeast Bradford School District v. Northeast Bradford Education Association, PSEA/NEA, 2017 WL (Pa. Cmwlth. 2017). OPINION NOT REPORTED. This is an election of remedies case involving a demotion. A full-time physical education teacher, a full-time reading specialist and a full-time art teacher were reassigned to part-time positions due to a lack of need for a full time position. Two of the three asked for a hearing under Section 1151 of the Public School Code, and the third teacher did not respond. Prior to the meeting at which the superintendent would formally recommend their reassignment, two teachers withdrew their requests for a hearing and notified the school district that they would be pursuing a different remedy. The Association subsequently filed a grievance on their behalf. Ultimately the Arbitrator sustained the grievances in arbitration and ordered the School District to reinstate all three employees to full-time positions and award back pay and benefits. 13

16 The District appealed stating that once an election was made, they could not change course. Interestingly, the Court indicated that the two remedies are not inconsistent and therefore, arbitration was not barred. Take Away: Once again, this demonstrates that a review of the School Code needs to be entertained and this is a different election than exists under Section 1133 of the School Code as it relates to dismissals. Donovan v. Pittston Area School District, 2017 WL (3rd Cir. 2017). OPINION NOT PRECEDENTIAL. The Third Circuit Court of Appeals affirmed the district court s grant of summary judgment in favor of the school district. In 2009, the school district hired Janet Donovan to be the principal in charge of curriculum for grades kindergarten through 12. In 2012, she was appointed to be the Intermediate Center principal. The new position came with the same salary and benefits, but different responsibilities. Donovan, viewing the new position as a demotion, sued the school district for a violation of her procedural due process rights. The district court granted the school district s motion for summary judgment, and Donovan appealed. On appeal, the court held that Donovan did not have a constitutionally-protected property interest in working as a particular type of principal for Pittston. She only had a constitutionally-protected interest in continued employment by the School District, and she was not deprived of that. In addition, her procedural due process claim also failed because she never availed herself of the statutory procedures available to her to challenge the demotion. Metz v. Bethlehem Area School District, 2018 WL (Pa. Cmwlth. 2018). Commonwealth Court upheld the termination of a tenured teacher for a positive drug test result for cocaine metabolites. On the day the school district received a copy of a letter between two attorneys related to a custody dispute and a positive drug test result for cocaine metabolites, the school district s human resources (HR) director met with Timothy Metz, a physical education teacher, and a union representative. The HR director asked Metz to submit to a drug test; when he refused, he was suspended without pay. Five days later, he submitted to a urinalysis drug test at the direction of the school district, and tested positive for cocaine metabolites. Metz waived his right to a Loudermill hearing. The school district issued a Statement of Charges and Notice of Hearing, listing willful neglect of duties and immorality as the charges. At the board hearing, the HR director explained why he required the urinalysis drug test ( obligation to make certain that there is a fully functioning, certified, competent teacher in every class, every day. ); a medical review officer testified about the drug test result; and the superintendent explained that a teacher who has tested positive for cocaine is a clear contradiction to the expectations of the community. In his testimony, Metz explained that he refused the first drug test upon his union representative s instruction, and admitted to taking cocaine between the first and second requests and previously testing positive for cocaine metabolites. The school district terminated his employment, and Metz appealed to the secretary of education. The secretary of education affirmed the school district s decision, finding he engaged in conduct constituting immorality by ingesting cocaine, and because his refusal to submit to the [first] drug test constituted willful neglect of duty. 14