Education Law : Pennsylvania Education Law Lawyer & Attorney : Fox Rothschild Law Firm : Education Statutory and Regulatory Changes

I don't know how I missed it, but by now you likely have heard about the controversy invovling a California student caught cheating and the parent that is suing to keep the school from imposing its normal punishment.  Not that I think the suit will ultimately be successful, but I want to point out the basis for the suit.  It could be instructive in other cases and situations.

Here, the father (a family law attorney) claims that that the policy imposing the penalty -- removing the kid from the special honors program -- is at odds with another school policy that seems to say the penalty would only be imposed for the second (or subsequent) offense.

Why does it matter?  Because the father's position has some legal basis.  If a school enacts policies that conflict with each other, that school may find it is not able to impose the harsher penalty because people could be confused about what punishment they'd face.  In general, when the Pennsylvania courts have seen such issues they have said that it was possible to read the conflicting policies together so there was no conflict.  That may not always be the case, though, so it is a situation to avoid where possible.

Lesson learned? Review policies as well as student/employee handbooks to ensure that you are not treating the same actions differently in those various places.

Finally, for those like me who managed to miss the coverage of this situation in California, you can read about it here.  By the way, the only reason I heard about this situation now is because Aaron Weems of Fox Rothschild's litigation department (family law) brought it to my attention.  Thanks Aaron.

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About a week ago, the Third Circuit Court of Appeals heard argument about a school's attempt to ban t-shirts and wristbands with the "I ♥ boobies" slogan on them.  This appeal is being closely watched because it can have a wide-reaching effect.  The prior decision was that the phrase has to be understood in its context, but -- as pointed out by the school's attorney during last week's argument -- what then of other good intentioned slogans such as the "feel my balls" slogan of the testicular cancer organization. 

There are various standards for limiting student speech.  The most often cited one is the Tinker standard that requires a substantial disrpution.  It is a high, but not impossible standard to meet for a school. 

The standard that is at the ♥ of this matter (ha!) is from Fraser, where the U.S. Supreme Court said that a school may ban lewd and vulgar speech taking place at school.  The Third Circuit panel hearing this case stated its feeling that the school would not meet the Tinker standard but might meet Fraser.

It is a slippery slope, so the danger is that were the court to allow this slogan, will the court tailor its decision closely enough so that it will not take away a school's discretion to ban something more clearly lewd?  With the success of the "I ♥ boobies" campaign for public awareness through its shock value, you can be sure that there will be others pushing the limits even further.

The lower court's opinion and order can be found here, although it will be what the Circuit Court says that really matters.

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Were you wondering what ever happened to the PA Safe Schools regulations?  Yeah, me too.

So I noticed in the PA Bulletin today that the PA Board of Education just submitted them for IRRC review.  But wait, you say, I thought they had already submitted them some time ago.  Turns out, you are correct.  On March 15, 2012, the Board discovered that the Safe Schools Act regulations it had previously proposed (the new Chapter 10) had "issues of form and legality" and voted to immediately withdraw them. 

Apparently, they felt the changes needed were relatively minor because they also voted to give the authority to make those changes to the Board's Acting Executive Director.  So, the Acting Executive Director got to make all necessary non-policy changes on their behalf to make the regulations comply with proper form and law.  As above, they were just recently resubmitted to the IRRC for final review.

If you want to see the Board's resolution to withdraw the prior version, it is available here.  If you wish to see the new regulations, as well as the few comments issued, they can be viewed here.

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As you likely know PDE has taken the position that last year's amendment to §1-111 requires a school to terminate a current employee who was (at the time) properly hired with a prior criminal conviction for a (now) barred offense.  Since those workers could clearly never get another job in a school, it was hardly fair to take away the one they already had.  In a decision from February of this year, there is at least one PA court that agrees with me.

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It is not new law, but a recent case reminds us that just because a teacher is incompetent as a teacher, once that teacher is fired he or she can still get unemployement compensation. 

What was kind of unfortunate is that it looks like the school administration in that recent case realized that an employee would be eligible for unemployment if fired for incompetence (probably when it got around to consulting with its counsel) but that realization only occurred after firing her.  So the court decided that when the administration told the employee "You are being terminated for being incompetent in you[r] job," that they pretty much meant what they said.

This despite the fact that the school also had evidence that the employee had also been terminated for wilfull refusal to accomplish assigned tasks.

Lesson to be learned?  School administrations would be best served to consult with counsel before taking steps to terminate employees.

The recent case -- which really does not break any new ground -- is the Hamburg Area School District v. UCRB and can be found at here.

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There is no direct school link, but I was reading a news item about a JPL (you know, "Jet Propulsion Labratories") employee who claimed he was fired for espousing his intelligent design beliefs at work.  Naturally, JPL denies the allegation, but the more interesting thing is that during opening statements at the trial, the attorney for the fired employee said that intelligent design is not a religious view.  This despite the central notion that an intelligent being directed the way that the cosmos evolved.

Of course, most readers will have at least heard of the Kitzmiller v. Dover Area School District case.  There, Pennsylvania showed itself as a leader: first to adopt a policy allowing intelligent design to be taught as science, then first in the nation to have that policy struck down by the court.  Good going Pennsylvania.  What Judge Jones ruled was that intelligent design is a "religious view, a mere re-labeling of creationism, and not a scientific theory."  It therefore should not be taught as science in our public schools.

This case was not appealed, so it remains just that one lonely 100+ page decision.  Clearly, it did not influence the attorney arguing for the fired JPL employee.

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What is an agency's Open Records Officer to do?  The exclusions in the PA RTKL are supposed to be "narrowly construed," but sometimes the information requested clearly SHOULD be protected.

This issue came up recently in front of the PA Commonwealth Court.

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According to Pennsylvania law, as of January 11, 2012, 160 out of the 500 school districts in the Commonwealth of Pennsylvania commenced negotiations. However, a very different phenomenon is emerging in teachers’ contract negotiations.

According to statistics from the Pennsylvania School Boards Association as of January 29, 2012, of the 152 school districts that started negotiating in January 2010, 14 are still not settled. This represents approximately 9.2% of the school districts that were negotiating.

More dramatically, of the 129 school districts that started negotiating in January 2011, 50 are still negotiating or approximately 38.8% of those school districts.

At the same time, the number of strikes in the Commonwealth of Pennsylvania for teachers has plummeted. The only strike as of late was the strike of the Neshaminy Federation of Teachers, which commenced on January 9, 2012, and ended on January 19, 2012, after almost four years of negotiations, with no settlement in sight. Indeed, during the Neshaminy work stoppage, the school board directed its chief negotiator not to meet with the union during the course of a work stoppage, a situation that would be rarely tolerated by the community in most work stoppages.

Why is this happening? What is really going on? For those individuals who are in the “field,” the reasons are fairly clear:

• Since the commencement of the Great Recession in 2008, the financial viability of most school districts in the Commonwealth of Pennsylvania has been challenged. Dramatically increasing retirement costs (PSERS), shrinking tax bases because of assessment appeals, decreased earned income, little or no transfer tax, the essential stopping of development in most school districts, and an ever shrinking Act 1 index that caps the amount a school district can raise taxes has caused a situation of unprecedented concern on the part of school administrators and school board members.
•  Even in school districts that have amassed significant unreserved fund balances, if you plot out the projections of new Act 1 money against expected school district costs in the near future, including the dramatic PSERS spike, the five year forecast for most school districts is bleak.
• The signs are all around us. The recent inability of the Chester Upland School District to pay its bills, including its wage obligations to its professional and non-professional staff, is a harbinger of things to come. School districts such as Reading, Allentown, York City, Harrisburg, and the like are not far behind. The State Legislature will need to grapple with the consequence that a number of school districts may become insolvent in the very near future.
• With little or no help expected from the Commonwealth of Pennsylvania, which is also dealing with its own financial crisis, school districts are left to attempt to control costs to the extent possible. Obviously, labor costs represent a majority of the costs of a school entity in Pennsylvania and when school districts come to the bargaining table to address these issues, there is a desire to obviously “right” the situation that has taken four decades to create since the advent of Act 195. All of that is “well-motivated” but thwarted by unions that have continued expectations of its bargaining unit members and the protection of what is known as “status quo.”
• Unlike any other kind of contract, labor contracts do not terminate as of their expiration date. Employers covered by a collective bargaining agreement are required to maintain the “status quo” with respect to compensation and benefits until such time as a new contract is negotiated or until a work stoppage, whichever comes first. In case a school district violates its obligation to maintain the “status quo,” the school district faces not only an unfair labor practice being issued by the Pennsylvania Labor Relations Board, but also the Unemployment Compensation Board deeming the situation of being a “lockout” where striking teachers would be entitled to receive potentially millions of dollars in unemployment compensation as the result of what might be a minor change in compensation and benefits.
• Complicating this situation is the fact that school districts are facing escalating health benefit costs that far exceed the Act 1 index (the trend in the Commonwealth of Pennsylvania is ranging anywhere from 8-12% per year), which a school district needs to absorb during the status quo time period, as well as continuing tuition reimbursement claims made by bargaining unit members.
• Though it is true that a school district does not need to advance teachers for longevity increases on their salary schedule or grant them educational attainment dollars, still the additional costs do weigh upon a school district in this “status quo” time period.
• In addition, during the period of when a contract expires, teachers can engage in “work to rule” where they only provide services that are literal to the contract and/or other binding policies of a school district. In many school districts that have expired contracts, teachers do not post things on bulletin boards, volunteer for extra duty contracts, participate in overnight field trips for elementary students, and the like. This has created a situation where no one seems to have an incentive to settle. On the one hand, the teachers do not want to settle a contract where they are contributing more toward healthcare when they are getting little or no wage increase. Making concessions in areas where they do not need to make concessions, since they are continued in status quo, does not make sense for most unions unless they are facing substantial pressure from their lower paid teachers to settle a contract because they are not getting step movement or educational attainment movement.
• On the other hand, it is often easier for school boards to tell their community that they are continuing to fight and negotiate a contract than to enter into a contract that gives certain benefits or compensation increases to its teachers in return for some other concessions.
• Over time, unless there is a substantive change in economic conditions or legislative change, the apparent trend that is now being created is that contracts are taking longer to negotiate.

What is the solution? The State Legislature needs to address this issue. The best way to address this issue is to grant school districts the same rights that a private employer has under the National Labor Relations Act, namely, the right to implement the school district’s last best offer and bring closure to the negotiations process once impasse is achieved. The current system where there is no incentive on either party to settle a contract, even in situations where the school district and/or the teachers’ union cannot necessarily live well under status quo, cannot continue for the foreseeable future.

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With apologies to some of my earlier English teachers, I now admit that I got through most of middle school without being able to identify the end of sentence.  As a result, I often saw the dreaded notation "RUN ON" written in red ink on my papers.  Although I finally got the hang of it, I am reminded of my earlier troubles now in the context of the criminal background check amendments which rely on the end of a person's sentence.

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Well, it's official. There is still no single rule on schools disciplining students who post things on the internet from home that would break school rules if done when under the jurisdiction of the school.  This week the U.S. Supreme Court decided not to hear appeals from Pennsylvania or West Virginia, letting stand the prior decisions of the Third and Fourth Circuits.  Unfortunately, it appears that those circuit court decisions came to opposite conclusions on the issue, and even in the Third Circuit the two cases do not give us a very clear rule.

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 A new federal rule prohibiting commercial drivers from using a hand-held cell phone while operating a commercial truck or bus went into effect  on January 3, 2012.  For us educationally minded individuals, the next logical question becomes does this new ban on hand-held phone use also apply to school bus drivers?   The answer as it so often is: it depends.  It depends on the school bus driver’s employer.

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The Pennsylvania Department of Education is taking a hard-lined and politicized view on what has to happen to an employee who self-reports an old conviction for an offense listed in §1-111(e).  Although not supported by the statute, in a new Basic Education Circular issued December 12, 2011, PDE tells school officials that they have a duty to fire such an employee.

I am not taking a position here whether it would be better or not to fire those school employees, but the statute says what it says. If the legislature wanted such people fired, it would have had to say so in the statute. As you can see, this issue has me all fired up.  You can read more of my thoughts about it below.  (I usually try to keep my posts fairly short, but this one is a bit longer than my norm, sorry).

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Recently, our office has gotten many more questions regarding the legal requirements for contracting with custodial service, security service, and maintenance service firms under Pennsylvania law.

Custodial Services and Security Services.  Pennsylvania public school districts are not required to competitively bid, nor solicit quotes for, custodial services or security services.  Accordingly, school districts in Pennsylvania would not be required to solicit bids or quotes.  However, as a practical matter, a school district may want to know whether or not Marsden rates are competitive.  So, a school district may decide to solicit bids or quotes periodically to make sure that the rates are competitive for their geographic area.

Although custodial and security services do not need to be competitively bid or solicited via quotes, the services offered must be purely services and not cross over into the realm of the provision of supplies or the provision of construction services (as the purchase of supplies needs to be competitively bid/quoted under Section 8-801.1 of the School Code and construction needs to be competitively bid/quoted under Section 7-751 of the School Code).  For example, the custodial service agreement should not include the purchase of toilet paper, paper towels, cleaning supplies, and so on; and the security service agreement should not include the purchase or installation of security equipment; and so on.

Maintenance Services.  Pennsylvania public school districts are required to competitively bid and solicit quotes for maintenance work under Section 7-751 of the School Code.  Competitive bids are required for maintenance work greater than or equal to $10,000 (threshold will be increased to $18,500 effective January 1, 2013), and quotations are required for maintenance work greater than or equal to $4,000 but below $10,000 (threshold will be increased to $10,000 effective January 1, 2013).  There is an exception for maintenance performed by school personnel under Section 7-751(d) of the School Code, and such work does not need to be bid/quoted regardless of value.

The Pennsylvania Department of Education has provided some guidance on this issue, by posting a table of action required for non-reimbursable projects.  PDE has indicated that "MAINTENANCE BY DISTRICT PERSONNEL:  Care, cleaning, servicing, and refinishing surfaces, equipment, and property" does not require the solicitation of quotes or competitive bids.  PDE has indicated that "MAINTENANCE BY CONTRACTORS:  Care, cleaning, servicing, and refinishing surfaces, equipment, and property" does require the solicitation of quotes or competitive bids.  Finally, PDE has indicated that "SERVICE CONTRACTS:  Equipment operation, normal maintenance does not require the solicitation of quotes or competitive bids.  Thus, certain equipment, usually specialized equipment (e.g. elevators, HVAC systems, etc.) are often serviced by a third party contractor who specializes in their upkeep, and such preventative maintenance contracts do not need to be solicited by quote or competitively bid -- but repair/replacement of such equipment would need to be solicited via quotes or competitively bid.  Also, some public school districts do not solicit bids for groundskeeping or snow removal, as they view this purely as a service, and not maintenance work.  Most, do, however, voluntarily solicit quotes to make sure they are receiving competitive pricing for groundskeeping and snow removal.

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On Wednesday, November 23, 2011, the PA Supreme Court issued its decision on whether a school district has to pay for a student to attend a charter or cyber charter school’s kindergarten when the student would be too young to attend the district’s program.

The answer was a clear and unambiguous "no."

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