DR. SAMUEL FRANCIS SCHOOL LAW SYMPOSIUM AND SPECIAL EDUCATION WORKSHOP. WEDNESDAY June 21, 2017 SCHOOL LAW UPDATE

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1 DR. SAMUEL FRANCIS SCHOOL LAW SYMPOSIUM AND SPECIAL EDUCATION WORKSHOP WEDNESDAY June 21, 2017 SCHOOL LAW UPDATE Carl P. Beard, Esquire Beard Legal Group, PC 3366 Lynnwood Drive P.O. Box 1311 Altoona, PA (814)

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3 SCHOOL LAW UPDATE A. Labor/Arbitration School District of Philadelphia v. Jones, No CD 2013 (Pa.Cmwlth.2016). On June 2, 2016, the Commonwealth Court of Pennsylvania, in the case of The School District of Philadelphia v. Ellis Jones, No C.D. 2013, Ellis Jones v. The School District of Philadelphia, No C.D. 2013, reversed the Acting Secretary s order discharging Ellis Jones for immorality in the classroom. Jones was accused of using foul language and engaging in topics of discussion related to sex. The Court stated that they agreed with the District that Jones acts were immoral and would be grounds for termination. However, the Court concluded the District committed multiple procedural violations of Section 1127 of the School Code, which violated Jones right to due process. Commonwealth Court held the district s action violated the School Code provisions requiring a statement of charges be attested by the Board Secretary and that a Board hearing be held within15 calendar days of the request for hearing. The Court found the following steps must be taken, in this order, in order for a District to comply with Section First, the school board, by resolution, must state it has sufficient evidence for discipline. The board president and secretary must provide written notice of charges to the teacher along with the right to a hearing. Second, the written statement of charges should be signed by the board president and secretary, sent by registered mail to the employee, and put the teacher on notice of the time, date, and location of the appeal hearing. Lastly, the hearing must be between 10 to 15 days after the initial written notice to the employee. Prior to Jones, the Board President and Board Secretary would sign the Statement of Charges letter to the employee that would be sent out registered mail. Now, prior to issuing a Statement of Charges, the School Board in Executive Session must be provided with sufficient evidence to support its belief the professional employee should have dismissal charges brought against him/her. After the Board hears such evidence, the Board of School Directors must pass a formal public resolution stating there is sufficient evidence to issue the Statement of Charges against the employee. This requirement is a deviation from what school districts did in the past when issuing Statement of Charges against professional employees. The formal resolution of the school Board could be as follows: Moved by, seconded by to authorize the issuance of a Statement of Charges against a professional employee (Employee No. ) extending an opportunity for hearing under Section 1127 of the Public School Code of 1949, as amended, and further authorize the Board President and Board Secretary to sign same and serve notice upon the Employee of such an entitlement to a hearing. In so doing, the Board believes there is sufficient evidence to support its belief a Statement of Charges should be issued to afford notice to the employee and an opportunity for a hearing. 1

4 In addition, when sending out the Statement of Charges letter, the Board Secretary should include other language confirming the Board of School Directors voted on such a motion/resolution. Such language could be as follows: I hereby attest that this Statement of Charges has been approved by resolution of the Board of School Directors at a public meeting on [date], that it was signed by the President of the Board of School Directors in my presence, and that I am the Secretary of the Board of School Directors duly authorized to make this attestation. Practice Note: Districts should consult with their Solicitor or Special Counsel in drafting the Statement of Charges or drafting the resolution/motion regarding the sufficiency of evidence to approve issuing a Statement of Charges against a professional employee. New Kensington-Arnold School District v. New Kensington-Arnold Education Association, PSEA/NEA, 2016 WL (Pa. Cmwlth. 2016) Commonwealth Court affirmed the trial court s denial of the district s petition to vacate the arbitration award. On April 3, the day after Joseph Melnick, a middle school music teacher and assistant high school band director, was arrested for possession of a sawed-off shot gun, 90 grams of marijuana, and drug paraphernalia, the superintendent placed him on unpaid leave pending further investigation and a final determination on the criminal charges. On April 10, the superintendent scheduled a Loudermill hearing for April 17, which he postponed until after the criminal trial, at the request of the association. After finding Melnick not guilty of possession of a prohibited weapon but guilty of possession of marijuana and drug paraphernalia, the court sentenced him to Probation Without Verdict (meaning if he successfully completes probation, the charges are dismissed without an adjudication of guilt or conviction). A few weeks after his sentencing, a Loudermill hearing was held, wherein the superintendent recounted the criminal charges and Melnick discussed the unfortunate circumstances which led to his arrest. A month later, Melnick received a letter from the superintendent, which stated that the district was seeking to have him dismissed by the board of school directors due to his convictions and that he had the right to demand a hearing. Melnick informed the district that he would proceed by grievance arbitration, and the board subsequently terminated him for immorality. Before the arbitrator, the association argued that the district violated his constitutional rights when it suspended him without pay without a prior hearing, and that the board did not give him a valid statement of charges or notice of hearing. The arbitrator concluded that the district violated his due process rights by suspending him without pay without first giving him a Loudermill hearing, awarding back pay from the date of his suspension until the date he asked to postpone the Loudermill hearing. The arbitrator also concluded that the statement of charges was defective because it was issued by the superintendent, not the board, and because it did not specify a time and place for a hearing, reinstating him to his former position as of the date he had to exercise his right to a board hearing. 2

5 The trial court denied the district s petition to vacate the arbitrator s award, noting that the district s deviation from the procedures mandated by the School Code violated the collective bargaining agreement (CBA). On appeal, Commonwealth Court discussed the applicable statutory language and case law, noting that the only way to cure a failure to follow the dismissal procedures set forth in Section 1127 of the School Code is a do over. Here, the arbitrator did not hold that Melnick could not be dismissed for his criminal convictions; instead, the arbitrator reinstated him because the district deprived him of the mandated procedural safeguards. Moreover, the district s argument that the arbitrator s award reinstating Melnick contravened a well-defined, dominant public policy failed because there is no such policy against reinstating a teacher who was dismissed in violation of due process and the School Code. Therefore, since the arbitrator s award drew its essence from the CBA and Melnick s reinstatement did not violate public policy, the court affirmed the trial court s denial of the district s petition. Cornwall-Lebanon School District v. Cornwall-Lebanon Education Association, 2017 WL (Pa. Cmwlth. 2017). OPINION NOT REPORTED. Commonwealth Court held the trial court erred in vacating the arbitration award, which reinstated a teacher who engaged in sexual activity with a student just hours after her graduation. Luke Todd Scipioni, a tenured social studies teacher and basketball coach, became close to one of his high school basketball players, A.H., who was experiencing problems at home. During the last half of A.H. s senior year, the two had significant communications and interactions, including communications about a sexual relationship after graduation, which culminated in a sexual encounter on the night of A.H. s graduation ceremony (in 2004). The sexual/romantic relationship continued throughout the summer. In 2014, an anonymous caller offered to provide the superintendent with information regarding the relationship between A.H. and Scipioni. In the ensuing investigation, A.H. admitted to having a sexual relationship after her graduation and her 18th birthday, but Scipioni refused to answer questions related to the nature of their relationship. Based on his lack of cooperation, the superintendent suspended him without pay and arranged to have his district-issued computer searched for evidence of the relationship. The district subsequently terminated Scipioni for the following: downloading illegal songs onto his district-issued computer; the receipt, retention, and forwarding of s containing disturbing language and images on his district-issued computer; an inappropriate relationship with a student; and a lack of candor when questioned by district officials about the inappropriate relationship. The association filed two grievances after Scipioni was suspended and subsequently terminated from his employment, arguing the district did not have just cause to suspend 3

6 and fire him. The arbitrator found that Scipioni should be penalized for four of the s and his dishonesty during the investigation, but not for the inappropriate relationship with A.H. because it occurred after her graduation. The arbitrator determined that the district failed to establish just cause for his termination and mitigated the remedy to a year-long suspension without pay. The district appealed to the trial court, arguing that the award should be vacated because it contravenes a well-defined, dominant public policy. The trial court granted the petition to vacate, concluding that termination will serve to ensure that other students will not be subject to inappropriate conduct on the part of Scipioni in the future. On appeal, Commonwealth Court applied the three-step analysis for application of the public policy exception, which requires the court to 1) identify the nature of the conduct leading to the discipline; 2) determine if that conduct implicates a well-defined and dominant public policy; and 3) determine if the arbitrator s award poses an unacceptable risk that it will undermine the implicated policy and cause the public employer to breach its lawful obligations or public duty, given the particular circumstances at hand, including any attendant aggravating or mitigating factors, and the factual findings of the arbitrator. Commonwealth Court ultimately concluded that the trial court erred in determining that the district satisfied the third step. Commonwealth Court concluded the trial court improperly reinterpreted the arbitrator s fact-findings and substituted the court s judgment as to the appropriateness of the award In so doing, it erred in determining that the District met the third step to the public policy exception to the essence test. Consequently, the court determined that the arbitrator s award did not contravene public policy. Rose Tree Media School District v. Rose Tree Media Secretaries, 2017 WL (Pa. Cmwlth. 2017). OPINION NOT REPORTED. The court affirmed the trial court s order vacating an arbitrator s award. The grievant worked as a Support Staff II employee and was assigned to assist a special education student at Penncrest High School. The school district terminated the grievant s employment because of the following incidents the grievant directed at the student s adapted English teacher: unwelcome classroom visits, sharing a jogging story with students, and strangulation drawings. The arbitrator concluded the district had just cause to suspend the grievant, but not to terminate his employment. Although the arbitrator found the grievant s conduct constituted neglect of duty and improper conduct, the arbitrator determined that the school district needed to: (1) memorialize notice to the grievant in writing, (2) meet with the grievant personally for each incident that required notice, and (3) investigate further by interviewing every party with involvement in the conflict. The arbitrator ordered the grievant reinstated without any backpay and without any loss of seniority. The trial court granted the district s petition to vacate the arbitrator s award, since the award was not rationally derived from the collective bargaining agreement. An arbitrator s award should be upheld if both prongs of the essence test are met (the issue as properly defined is within the terms of the collective bargaining agreement, and the arbitrator s award can be rationally derived from the collective bargaining agreement) and the award does not contravene public policy. On 4

7 appeal, the court concluded the arbitrator s determination that additional due process was required in order for Grievant s termination of employment to be supported by just cause is not rationally derived from the CBA. Since the award failed the second prong of the essence test, the award was properly vacated. School District of Philadelphia v. Commonwealth Association of School Administrators, Teamsters Local 502, 2017 WL (Pa. Cmwlth. 2017). OPINION NOT REPORTED. Commonwealth Court reversed the trial court s order in this case involving the reinstatement of a principal involved in a cheating scandal. An investigation concluded that school employees in several district schools altered the Pennsylvania System School Assessment (PSSA) tests in an attempt to bolster the school s overall performance. The investigation determined that 100% of William T. Tilden Middle School s PSSA tests in 2009 and 2010 were altered. Michelle Burns served as principal during this time, and the district alleged that she either actively participated in the improper conduct or knowingly allowed the conduct to continue, or acted negligently by failing to discover and present such misconduct. The district terminated her employment based on these allegations, and the union filed a grievance. The arbitrator ordered the district to reinstate her, concluding that she did not actively participate in the cheating, but was neglectful in failing to discover the cheating that was occurring. The trial court granted the district s petition to vacate an arbitration award, reasoning that the arbitrator s decision was not supported by any provision of the collective bargaining agreement (CBA) and that the decision to reinstate her violated a clear public policy against school administrators condoning cheating. On appeal, the court concluded that: the trial court erred by exceeding the scope of its review to the extent that it held that the arbitrator misinterpreted the definition of just cause in the CBA; the arbitrator s authority to modify the discipline imposed by the district was not expressly limited by the CBA, statute, or regulation; and an arbitrator s award reinstating an administrator after finding her guilty of mere negligence does not violate a fundamental public policy. Consequently, the court reversed the order of the trial court after finding the arbitration award should not have been vacated. B. Transgender Legal Update For many years, PSBA has urged its members to work with transgender students and their families to meet the needs of individual students and to provide them with a safe and supportive school environment. In addition to continuous updates on the law, PSBA has provided in-depth training and materials on practical ways to accommodate transgender students. However, there are lawsuits pending in Pennsylvania and the United States that still must be decided before we know whether Title IX can be used to protect individuals from discrimination based on gender identity. Some of these cases have been in the news in recent weeks and interim orders have been issued. Links to these orders are found at the end of this article. PSBA will keep members informed about these cases. The Education Law Focus page on the PSBA website is a good source of current, objective information on this topic. 5

8 Evancho v. Pine-Richland School District, 2017 WL (W.D. Pa. 2017). On October 28, 2016, the Supreme Court agreed to consider the Fourth Circuit Court of Appeals case of GG v. Gloucester County School Board. GG involved a transgender boy who sought to use the boys restroom at school. GG was challenging the school district s refusal to allow him to use the bathroom of the gender with which he identifies. The case went to the Federal District Court which rejected the student s claim of discrimination. Subsequently, the Fourth Circuit Court of Appeals determined that the trial court must defer to enforcing agency s (OCR) interpretation of the Statute but held for the time being the student would not be permitted to use the bathroom with which he identified. On March 28, 2017 the U.S. Supreme Court will hear arguments from attorneys representing the school district and the ACLU representing the student. As reported in a past issue of this firm s Newsletter, a Texas Appeals Court issued a nationwide injunction prohibiting the U.S. Department of Justice and Office of Civil Rights Compliance from enforcing the May 13, 2016 Guidance put out under the Obama Administration. Since the Fifth Circuit Court of Appeals issued a nationwide ban that prohibited the Department of Justice and OCR from enforcing the Guidance outlined in the Dear Colleague letter. On February 22, 2017, President Trump directed the Department of Justice and OCR to issue a Guidance that in essence indicates that the Department of Education and Department of Justice are withdrawing the statements of policy and guidance reflected in two communications to school districts, the most notable being the Dear Colleague letter on transgender issues issued by the Civil Rights Division of the Department of Justice and Department of Education dated May 13, While this certainly has implications moving forward as it relates to the enforcement perspective from U.S. Government agencies, this does not in any way negate pending litigation across the nation wherein there are private complaints outlining violations of Title IX based on discrimination involving transgender students. The most notable in Pennsylvania is that of Pine Richland. Neither the U.S. Department of Education (OCR) nor the Department of Justice were involved in that case. However, that case is still alive and well. The case was argued on December 2, 2016, before Judge Hornak in the Western District Court of Pennsylvania. On February 27, 2017, Judge Hornak granted in part the Plaintiff s Preliminary Injunction permitting transgender students to use bathrooms in the High School consistent with their gender identities. In that case, three transgender students are seeking the Court to grant an injunction giving them permission to utilize bathrooms within the school district of the gender with which they identify. In addition, they are seeking general damages under Title IX. Until the U.S. Supreme Court weighs in on this issue in the ensuing months, it would behoove school districts to maintain the status quo and not take any affirmative steps to change their policies, procedures or protocols as it relates to addressing issues of transgender students on a case-by-case basis. 6

9 All school districts, to include administrators and school board members alike, are encouraged to review the Pennsylvania School Boards Association s transgender legal update (February 22, 2017) as well as the Pine Richland decision. No matter what the ultimate outcome is in the Pine Richland or the U.S. Supreme Court case of Gloucester, it will still require school districts to insure that students are not otherwise bullied or harassed in the school setting as a result of the gender status. On Monday, February 27, 2017, The United States District Court for the Western District of Pennsylvania ruled that the Pine-Richland School District must allow transgender students to use bathrooms that match their gender identity pending a final decision in the case. The injunction will be in place until the Court rules on the District s new Restroom Policy. United States District Judge Mark Hornack s ruling allows the District s students to use the bathroom in line with their chosen identify, not their assigned or anatomical sex. In his Opinion, Judge Hornack detailed that the grant of relief ordered would cause little harm to the District and the High School community since the students were utilizing their choice of bathroom prior to the School District s enactment of the new policy. Furthermore, the Court stated the Plaintiffs have set forth, without factual contradiction from the District, the actual, immediate, and irreparable harm that they are experiencing under the new bathroom policy. Despite the most recent directives under the new Presidential Administration, the United States Supreme Court plans to hear the G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd. case arising out of the 4th Circuit Court of Appeals in Virginia on March 28, 2017, which involved whether or not preventing students from the use of bathrooms corresponding to their gender identity violates Title IX. Whitaker v. Kensoha Unified Sch. Dist, No (7 th Cir. May 30, 2017) The Seventh Circuit upholds the District court s grant of a preliminary injunction ordering a Wisconsin school district to allow a transgender student to use the boys restroom based on gender identity. On May 30, 2017, the US Court of Appeals for the 7 th Circuit upheld a preliminary injunction that temporarily stopped the district from enforcing a policy requiring students to use the restroom of the biological sex they were assigned at birth. Judge Ann Claire Williams wrote that Kenosha Unified School District No. 1 s privacy argument is based upon sheer conjecture and abstraction after the District was unable to provide any incidents of harm or complaints from students while Ash Whitaker used the boys bathroom. Since the policy was designed to protect students privacy, the solitary complaint from a teacher and multiple complaints from parents at a school board meeting was not enough to convince the panel to overturn the injunction. [The] policy [did] 7

10 nothing to protect the privacy rights of each individual student vis à vis students who share similar anatomy and it ignores the practical reality of how Ash, as a transgender boy, uses the bathroom: by entering a stall and closing the door. School administrators from 21 states and the District of Columbia wrote amici briefs in support of Ash, all noting that the frequently raised and hypothetical concerns about a policy that permits a student to utilize a bathroom consistent with his or her gender identity have simply not materialized. Importantly, this case was decided without reliance or mention of the Obama-era guidance that the Trump administration rolled back shortly after taking office. The District is still considering whether to file an appeal to have the case heard en banc, an appeal to the US Supreme Court, or to proceed with the case in district court. NOTE: The next school board meeting is June 27, 2017 where a decision may be made on what action to take with the case. Doe v. Boyertown Area School District, Eastern District of Pennsylvania, 5:17-cv (2017) Three high school students have joined the federal lawsuit against Boyertown Area School District, a lawsuit filed in March by the parents of an anonymous 11 th Grade boy who objected after seeing a transgender boy undressing in the high school boys locker room. The ACLU intervened on behalf of Aidan DeStefano, a transgender boy, while applauding Boyertown for [doing] the right thing in affirming and respecting their students gender identity. The ACLU has argued that because they can t possibly use the girls facilities any more than other boys could be expected to do so, if Plaintiff were to prevail, transgender students would be excluded from the facilities used by all other students and forced to use separate facilities that other students may choose to use, but no other student is required to use. The stigma that comes with that proposed requirement is damaging to a young teenager. The Boyertown Area School Board has already voted 6-3 to reject a proposal that would see transgender students rights trampled in exchange for dismissal of the lawsuit. Boyertown was also recently dealt a small victory by the US Court of Appeals for the 7 th Circuit when they unanimously upheld an injunction requiring the school in question to allow Ash Whitaker to use the boys bathroom. C. Student on Student Harassment Bittenbender v. Bangor Area School District, 2017 WL (E.D. Pa. 2017). The court denied the school district s motion to dismiss in this case involving allegations of student-on-student sexual harassment. Between the third and eighth grades, S.B. alleged that she suffered offensive verbal sexual harassment and physical assault. S.B. was called offensive terms including slut and lesbian, and was pushed. S.B. reported the incidents to her guidance counselors and teachers. The offensive conduct continued; and when she was in the sixth grade, S.B. gave a speech in front of the school board about her bullying experience. Over the next several years, the frequency and severity of the sexual harassment continued, resulting in discussions with the principal, guidance counselors and school psychologist, and the creation of a student club to combat bullying. In eighth grade, S.B. received inpatient treatment because she was contemplating suicide. The school did develop a safety plan, but when the escort protection was removed, S.B. s 8

11 parents removed her from the district. S.B. s parents filed suit against the school district alleging a violation of Title IX for sexual harassment and discrimination. In order to prevail on a Title IX claim against a school district, a plaintiff must prove that: (1) an appropriate person (one who can take corrective action and address alleged discrimination) had actual notice of discrimination/abuse and acted with deliberate indifference to the discrimination/abuse, and (2) such sexual harassment is severe, pervasive and objectively offensive and that it effectively prevents the victim from enjoying an educational opportunity or benefit. The court concluded the allegations of consistent sexual harassment by eight individuals over a five-year period was sufficiently severe and pervasive to survive a motion to dismiss. The plaintiffs also alleged sufficient facts to show an appropriate person had knowledge of the harassment. Consequently, the court denied the school district s motion to dismiss because the plaintiffs alleged sufficient facts to establish a Title IX violation. D. Negotiations/Labor Issues Chester Upland School District v. Pennsylvania Labor Relations Board, 2016 WL (Pa. Cmwlth. 2016). Commonwealth Court affirmed a Final Order of the Pennsylvania Labor Relations Board (PLRB) that determined the school district committed unfair labor practices. While the parties were operating under status quo, the district notified its employees of a new attendance and punctuality policy. The new policy did not reduce the amount of sick days. The unions objected to the new policy on the basis that it was a mandatory subject of bargaining. The district took the position that the new policy provides guidance on how the attendance and sick leave are to be tracked and monitored, an issue not addressed in the collective bargaining agreements (CBAs). The hearing examiner dismissed the unions charge of unfair labor practices, since the unions failed to meet their evidentiary burden of showing a change in terms or conditions of employment. The PLRB took a different approach, recognizing an exception to the general rule that a complainant bears the burden of proof, where an employer s unilaterally imposed policy differs from the express words of the CBA, the burden of proving that there is, in actuality, no change with respect to the application of negotiated terms and conditions of employment lies with the employer as a defense to the charge. The PLRB vacated the hearing examiner s proposed order, since the district failed to present substantial evidence to show application of the policy was consistent with binding past practices regarding sick leave and discipline. Both the hearing examiner and the PLRB determined the district s implementation of the new attendance and punctuality policy constituted a mandatory subject of collective bargaining, and the court agreed with this conclusion. The court noted the unilaterally implemented disciplinary provisions of the new policy distinctly impact the employees 9

12 terms and conditions of employment to a greater extent than they affect the basic policies of the school district. With regard to the burden of proof, the court stated that placing the burden of proof on the District to more fully establish its sound arguable basis in the CBA is consistent with prior decisions. Consequently, the court discerned no error or abuse of discretion in the Board s determination that the District failed to present substantial evidence that the discipline issued under the new policy was consistent with discipline issued under the sick leave provisions of the CBA. E. Furlough/Demotion Fitzpatrick v. McKeesport Area School District, TTA No (Secretary of Education 2016). The secretary of education (secretary) affirmed the school district s decision to demote Ms. Fitzpatrick. As a result of a building consolidation and budgetary constraints, the district eliminated Fitzpatrick s principal position and assigned her to an assistant principal position in the same school. The secretary reviewed the job description for each of the positions, noting the principal position was far greater than her assistant principal position in terms of authority, prestige and responsibility. The secretary concluded that her reassignment from principal to assistant principal was a demotion. That being said, as long as a rational basis exists for the demotion and the demotion was not arbitrary, discriminatory, or based on improper considerations, a school board s decision is presumptively valid. Fitzpatrick alleged racial discrimination, but the evidence did not support this claim; and, the secretary did not have jurisdiction over her seniority claims. Thus, the secretary found that the district demoted her for reasons which were neither arbitrary, improper nor discriminatory. The secretary also found the district had rational reasons cuts to personnel budget and familiarity with school to demote her. Consequently, the secretary affirmed the district s demotion. F. Weapons S.A. v. Pittsburgh Public School District, 2017 WL (Pa. Cmwlth. 2017). Commonwealth Court affirmed the trial court s order in this case involving whether a sharpened pencil constitutes a weapon as that term is defined in the School Code. S.A., a 14-year-old student, stabbed another student multiple times in the neck with a sharpened pencil. The student sustained injuries to the side and back of his neck. The school has a policy, modeled after Section of the School Code, prohibiting possession of a weapon while on school property, defining the term weapon, and stating that a student who violates the policy will be expelled for one year unless the superintendent recommends a lesser penalty. After a hearing, the school board voted to expel S.A. for one year. S.A. appealed, and the trial court reversed the board. 10

13 On appeal, the school district argued that a sharpened pencil, when used to stab and injure another student in the neck, qualifies as an implement capable of inflicting serious bodily injury. The court s analysis focused on the definition of a weapon. The court began by extracting this principle from a previous case involving a pellet gun -- when deciding whether an object is a weapon, the inquiry must focus solely on the object in isolation (in a vacuum so to speak) and its inherent operational capabilities; that is, what the object is intended to do in the practical and functional sense. Consequently, it is the object, not the conduct of the person using the object, that determines whether an object is a weapon. Then, turning to the definition, the court first determined the doctrine of ejusdem generis ( of the same kind or class ) is applicable. Consequently, the definition which includes several items that are traditionally considered to be weapons followed by catch-all language -- any other tool, instrument or implement capable of inflicting serious bodily injury -- must be read in tandem and viewed as a collective whole. Applying this doctrine, the court determined that a pencil is not a tool, instrument or implement, which is comparable to the expressly listed traditional weapons; therefore, a pencil is not a weapon for purposes of the policy and Section of the School Code. Since the court determined possession of a pencil is not equivalent to possession of a weapon, the court affirmed the trial court s order. Commonwealth of Pennsylvania v. Goslin, 2016 WL (Pa. Super. 2016). The Superior Court affirmed a sentence of one-year probation for possessing a weapon on school property in violation of Section 912 of the Crimes Code. Andrew Josiah Goslin attended an informal hearing at his son s school concerning an incident where his son possessed a knife on school property. At the hearing, Goslin stated that he had a knife, asked if the principal was going to call the police, and then slammed the knife down on the table. He did not point the knife at anyone, and it was closed the entire time. The Commonwealth filed a complaint charging him with possessing a weapon on school property. The Pennsylvania Crimes Code makes it a first-degree misdemeanor to possess a weapon, including any knife, in the buildings or grounds of any elementary or secondary public, private, or parochial school, further providing that: It shall be a defense that the weapon is possessed and used in conjunction with a lawful supervised school activity or course or is possessed for other lawful purpose. 18 Pa.C.S.A. 912(b), (c). At the bench trial, Goslin testified that he s a carpenter and he carries the knife with him everywhere. The trial court acknowledged the prohibition and the exceptions, and concluded that Goslin s situation does not fall within one of the exceptions. On appeal, he asked the court to review whether the trial court erred in appropriately applying lawful purpose under 18 Pa.C.S.A. 912(c), and how other lawful purpose is defined. In addressing the issue, the court referenced the following dicta from a Commonwealth Court decision, or for [an]other lawful purpose (meaning, for 11

14 example, that an investigator, or a security guard, or other person who as part of his or her duties carries a firearm will not be charged with a crime under this section even if he or she is possessing a weapon on school grounds). Bolden v. Chartiers Valley School District, 869 A.2d 1134, 1139 n.7 (Pa. Cmwlth. 2005). The court also referenced language from the trial court s opinion, [T]he lawful purpose must be related to the reason why one is on school property. If not, it would allow anyone to bring a variety of weapons onto school property so long as the possessor had an alternate explanation for possessing the weapon. Such an intention would nullify the intent of the statute.... The court ultimately agreed with the trial court, concluding that Goslin went to the school as a parent, with no purpose for possessing the knife on school property. Consequently, his sentence of probation was affirmed. Judge Dubow dissented, arguing that the other lawful purpose language expands the defense to include any additional or different lawful reason not otherwise mentioned in the first clause. Superior Court (2/16/2017), sitting en banc, unanimously overturned the underlying decision. They reasoned that the other lawful purpose language does not restrict the defense provided in Section 912(c) as the trial court held. Instead, the phrase does just the opposite: it expands the defense to include any additional or different lawful reason not otherwise mentioned in the first clause of Section 912(c), regardless of whether it is school related. The Superior Court did kick the can down the road a little with its final footnote: Although we are concerned about individuals possessing weapons on school property, we are bound by the broad defense that the legislature has provided defendants in such cases. We would urge the legislature to review this language to ensure that the legislature s view has not changes since it enacted this defense in G. Trends in Plaintiff Complaints 1. First Amendment Claims/Cases Sundberg v. Lewisburg Area School District, et al, Middle District of Pennsylvania, 4:17- cv-0063 (2017) Roehn v. Montour Area School District, Western District of Pennsylvania, 2:17-cv-0069 (2017) Shorts v. Conemaugh Township Area School District, Western District of Pennsylvania, 3:17-cv (2017) 2. Title IX Claims: Bacher v. Moshannon Valley School District, et al., Western District of Pennsylvania, 3:15-cv-12 (2015) Plowman v. Blairsville-Saltsburg School District, Western District of Pennsylvania, 2:15-cv-1450 (2015) 12

15 Blatt v. Cabela s Retail, Inc., 2017 WL (E.D. Pa 2017). The court denied employer s partial motion to dismiss in this case involving discrimination on the basis of sex and disability. In October 2005, Kate Lynn Blatt was diagnosed with Gender Dysphoria, also known as Gender Identity, which substantially limits one or more of Blatt s major life activities, including, but not limited to, interacting with others, reproducing, and social and occupational functioning. Gender Dysphoria is characterized by clinically significant stress and other impairments that may be disabling. After Blatt was hired by the employer in September 2006, she alleges that her employer began to discriminate against her on the basis of her sex and her disability, and retaliated against her for opposing this discrimination. She also alleges that the employer terminated her in February 2007 on the same basis. Blatt alleged violations of Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA). The employer sought dismissal of her ADA claims. The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities of [an] individual. Section of the ADA excludes certain conditions from coverage, including gender identity disorders. The employer argues this provision excludes Blatt s condition from the ADA s scope. Applying the constitutional-avoidance canon, the court sought an interpretation of the provision to avoid the constitutional question, finding that it is fairly possible to interpret the term gender identity disorders narrowly to refer to simply the condition of identifying with a different gender, not to exclude from ADA coverage disabling conditions that persons who identify with a different gender may have such as Blatt s dysphoria. Consequently, the court concluded Blatt s condition is not excluded, and employer s motion to dismiss on this basis is denied. With regard to her retaliation claim, Blatt alleges that she continually reported that she was subject to discriminatory comments on the basis of her disability, and that she requested accommodations female nametag, uniform, and restrooms which resulted in a pattern of antagonism. At this stage, the court found the allegations sufficient to dismiss the employer s motion. K.E. v. Dover Area School District, 2016 WL (M.D. Pa. 2016). The court partially denied the defendants motion to dismiss. Plaintiff s Fourteenth Amendment (based on failure-to-train and state-created danger theories) and Title IX claims survived the motion to dismiss. In this action involving teacher-on-student sexual assault, K.E. alleges that a male music teacher employed by the district sexually assaulted her over the course of four years, and as a result she became pregnant at the age of 13. K.E. also alleges that on at least two separate occasions she reported the teacher s conduct to teachers and/or administrative staff, but was later pressured to rescind her claims. K.E. premised her municipal liability claim on failure-to-train (failure to train school employees to detect or report signs of sexual abuse) and failure-to-act (failure to respond to student reports of inappropriate sexual contact) theories. The court concluded that K.E. has, at this stage, adequately alleged deliberate indifference pursuant to both 13

16 theories of liability. With regard to her state-created danger claim, the court found that, if proven, the conduct of school staff amplified K.E. s vulnerability to further harm. Her Title IX claim also survived, and the question of whether an appropriate person had actual knowledge of the misconduct and failed to respond will be resolved later in the litigation. Bumbarger v. New Enterprise Stone and Lime Co., Inc., 2016 WL (W.D. PA 2016). The District Court granted summary judgment for this private employer in a case addressing a wide variety of common issues that arise in a sexual harassment hostile environment claim. Among other things, the female plaintiff s supervisor continually used profanity and screamed at people, male and female; however, on a number of occasions, he directed at her profane language that is only used to describe women. The court found that his use of these words and other profanity directed at her over a fouryear period is insufficient to find his harassment of her based on sex was sufficiently severe or pervasive. A co-worker also gave the plaintiff a Hurt Feelings Report, a parody internet complaint form which can be filled out and allows the hurt person to check off items as the reasons for filing the report such as I am thin skinned; I am a p- -y; I have women[-]like hormones; I am a qu--r; I am a little b--h; I am a crybaby; I want my mommy; and ALL OF THE ABOVE. While inappropriate, the court found this one-time incident is a petty slight, which is insufficiently severe or pervasive as to constitute a hostile work environment. Similarly, her co-workers hassling her by making her do some menial work and mocking her was not sufficiently severe or pervasive as to amount to hostile environment harassment. The plaintiff also failed to establish that the use of profanities on the job site would detrimentally affect a reasonable person of the same sex in her position. She herself used profanity, and the supervisor did not just direct his highly inappropriate behavior at women. With regard to respondeat superior liability, the employer took steps to prevent and promptly correct sexually harassing behavior. The plaintiff did not take advantage of a suggestion that she sign a complaint when the circumstances first came to the employer s attention. However, the employer still followed through to address the misconduct. The court noted that a generalized fear of retaliation does not justify a failure to follow an employer s complaint procedures. The employer also continued to monitor the situation and to respond to the plaintiff s concerns. At the time she voluntarily resigned, the employer was investigating the Hurt Feelings Report and co-worker mistreatment. These were the reasons why she resigned, but her decision to resign when these incidents were under investigation was unreasonable and did not constitute a constructive discharge. Practice Note: While this case originates from the private sector, the ruling in question is significant not only for private sector employers but for Public School entities as well. The case encompasses gender-based discrimination, genderbased hostile environment, constructive discharge and retaliation. For starters, the case is a primer for anybody that would ever have to deal with a hostile environment or constructive discharge issues because it examines, beginning on Page 26 of the Decision, the Time Bar/Statute of 14

17 Limitation implication as it relates to bringing suit. The Judge also addresses discrete discretionary acts versus offensive epitaphs. On Page 29, under Title VII, it addresses the five Prongs that a Plaintiff needs to undertake in order to make a prima facie showing of a hostile work environment. The Judge then goes on to analyze each one of these in light of the allegations in this particular case. Beginning on Page 46, looking at Prong 3 as to whether the discrimination detrimentally affected the Plaintiff, the Judge analyzed the facts to determine that like conduct over a five-year period of time was not sufficiently severe or pervasive to demonstrate support of this particular Prong of the test. As it relates to the fourth Prong, the discrimination would detrimentally affect a reasonable person of the same sex in that position. In this particular case, Judge Gibson found that the alleged villain, Mr. Stamm, was a universally offensive person to everyone. In other words, he said inappropriate and unprofessional things to both males and females alike. In the end the Judge concluded that the conduct would not detrimentally affect a reasonable person of the same sex in Plaintiff s position. On Page 54, the Judge gets into identifying Faragher-Ellerth Affirmative Defenses. After doing a detailed analysis of the facts in this case, the Judge concluded that the Plaintiff unreasonably failed to take advantage of Plaintiff s preventative measures for reporting and dealing with instances of unlawful harassment in the work place. As it relates to Constructive Discharge on Page 65, after going through an analysis of the law and the facts, the Judge concluded that the Plaintiff failed, as a matter of law, to demonstrate a prima facie case for constructive discharge. The Judge does an excellent job of looking at what has been claimed and providing his analysis in the application of prior case laws that relates to some of the instances, particularly as it relates to the language that was allegedly spewed at the Plaintiff from one of Defendant s employees. Anybody that would have to defend one of these cases would find this case to be a watershed of information as it relates to cases dealing with these types of issues. For example, Judge Gibson stated that the use of the word bitch two times over four years rises to the level of an epitaph, not discriminatory conduct. H. Truancy Law (Act 138 of 2016) Districts should currently be reviewing truancy procedures in keeping with the spirit and intent of both Act 138 as well as the federal Every Student Succeeds Act, which, like Act 138, seeks to reduce to overuse of disciplinary practices that remove students from the school setting. Act 138 s definition of truancy and habitual truancy specifically defines truancy and offers a similarly specific definition of school day : 15

18 "Habitually truant" shall mean six (6) or more school days of unexcused absences during the current school year by a child subject to compulsory school attendance under this article. "Truant" shall mean having incurred three (3) or more school days of unexcused absences during the current school year by a child subject to compulsory school attendance under this article. School day" shall mean the length of time that a child subject to compulsory school attendance is expected to be receiving instruction during a calendar day, as determined by the governing body. Act 138, effective this August, specifically prohibits school districts from utilizing exclusionary tactics that could remove a student from the classroom, by stating that schools shall not expel or impose out-of-school suspension, disciplinary reassignment or transfer for truant behavior. The plain language of the statute does not appear to apply itself to situations which relate to exclusion from out-of-school activities, as opposed to a suspension/reassignment/transfer from the school setting/school day, and addresses tardiness rather than full-day absences. To that end, the District may have some discretion to determine whether it wishes to continue with such a policy, where there is not a health-related or other reason to excuse the tardiness. School Districts should be cognizant of concerns raised about the effectiveness and justification of exclusionary practices generally, particularly where concerns over discriminatory practices and impacts on minority students, disabled students, etc. have been coming to greater fruition in recent years. In relation to such a concern, note that the federal Every Student Succeeds Act, which requires LEA Plans to include how the LEAs will support efforts to reduce the overuse of discipline practices that remove students from the classroom as well as the Joint State Government Commission s study and recommendations on school discipline. These recommendations included, most pertinently: - That school districts should minimize use of disciplinary exclusions from school and use of law enforcement and be mandated to use behavioral supports and interventions to prevent recurrence of behavior that resulted in suspension or expulsion - Pennsylvania should substantially lower its out of school suspension and expulsion (exclusions from school) rates, based on statistics which show it to be in the top 25% nationwide, in part by severely limiting exclusions from school for students over age 10 to very serious infractions and only after behavior support and interventions have failed - Children ten and under should only be excluded from school for offenses of a violent or sexual nature which endanger others and that when they are excluded, they should be educated in an alternative education placement during any exclusions from school 16