Blog Closing - Subscribe to Our New E-Series

The Education Practice of Fox Rothschild LLP is pleased to announce the launch of its new education law e-series of monthly newsletters devoted to the changes and observations impacting educational professionals and institutions.

The new series will replace our existing Education Law Blog and will be delivered to your inbox each month.  We appreciate your readership and invite you to click below to ensure your continued subscription.

Click here to subscribe to our new e-series


What was the Pennsylvania Legislature Thinking When it Modified the Accountability Provisions for Teachers under the Public School Code?

Under the guise of improving teacher accountability, the Pennsylvania Legislature recently engaged in a sweeping overhaul of the evaluation process for professional employees (teachers) under the Public School Code. However, in making some of these changes, however well-motivated the State Legislature may have been in terms of improving teacher accountability, the State Legislature has actually made it far more difficult to terminate professional employees who are not performing up to standards in the Commonwealth of Pennsylvania.

First, the Pennsylvania Legislature included the following language modifying the Public School Code:

No employee shall be dismissed under Section 1122 unless the employee has been provided a completed rating tool provided for under this section, which includes a description based upon classroom observations of deficiencies in practice supported by detailed anecdotal records that justify the unsatisfactory rating.

The translation of this language is that no teacher or temporary professional employee can be dismissed unless they are rated unsatisfactory on the rating tool. At first blush, that might seem to be appropriate. However, if, for example, a teacher were to have engaged in inappropriate sexual misconduct with a student, which would otherwise be immorality under the School Code, the district would have to rate a teacher first as unsatisfactory before they dismiss a teacher. Even though this is patently absurd, the legislation will definitely need to be amended to change this provision.

Second, the legislation also provides for a new rating instrument and methodology. Beginning in the 2013-2014 school year, the evaluation of professional employees and temporary professional employees needs to take into account the following:

I. Classroom observation and practice models that are related to student achievement in each of the following areas:

(a) Planning and preparation

(b) Classroom environment

(c) Instruction

(d) Professional responsibilities

II. Student performance, which shall comprise 50% of the overall rating of the professional employee or temporary professional employee serving as a classroom teacher and shall be based on multiple measures of student achievement. The 50% shall be comprised of the following:

(a) 15% building level data, including but not limited to all of the following:

I. Student performance on assessments

II. Value-added assessment system data made available by the Department under Section 221

III. Graduation rate as reported to the Department under Section 222

IV. Promotion rate

V. Attendance rate as reported to the Department under Section 2512

VI. Advance placement course participation

VII. Scholastic aptitude tests and preliminary scholastic aptitude tests

(b) 15% of the teacher’s specific data, including but not limited to student achievement attributable to a specific teacher as measured by all of the following:

I. Student performance on assessments

II. Value-added assessment system data made available by the Department under Section 221

III. Progress in meeting the goals of the student individualized education plans required under the Individuals with Disabilities Education Act.

IV. Locally developed school district rubrics

c) 20% elective data, including measures of student achievement that are locally developed and selected by the school district from a list approved by the Department and published in The Pennsylvania Bulletin by June 30 of each year including, but not limited to, the following:

I. District-designed measures and examinations

II. Nationally recognized standardized tests

III. Industry certification examinations

IV. Student projects pursuant to local requirements.

V. Student portfolios pursuant to local requirements.

On their face, these objective methodologies may seem to be a good idea and if they were properly implemented, they very well could be a good idea. However, the State Legislature and/or the Governor’s Office that proposed this language have very little understanding of the evaluative process for professional employees and how labor arbitrators will interpret this language.

Third, as the result of the imposition of this language, should a district in the future seek to terminate a professional or temporary professional employee, one can expect that the teachers’ unions representing these employees will argue that a teacher cannot be held accountable on the basis of performance for all of the students in their classroom because:

  • The teacher does not have a choice in which students are assigned to them.
  • The teacher may have a disproportionate number of students who are exceptional students from a special education perspective.
  • How could a teacher be held responsible for the problems that may have been created as the result of a prior professional employee or temporary professional employee who did not perform adequately with the student (poor teaching performance usually has at least a four year residual impact on students)?
  • The teacher cannot be held responsible for the socioeconomic status of a student, which has the greatest predicative factor on student performance.

Fourth, the proposed evaluation methodology further does not take into account how to evaluate teachers where performance results do not adequately measure the teacher’s performance. Examples of this would be the rating of music teachers, art teachers, guidance counselors, physical education teachers, vocational-technical school teachers, intermediate unit teachers, and the like.

Fifth, I would expect that now the termination of a professional employee will become a statistical battle between districts and teachers. Though it is clear that the current system is not optimal and is much more subjectively based, I conclude that the proposed legislation will actually make it more difficult to terminate professional and temporary professional employees than ever before. Accordingly, “what was our State Legislature thinking?”

Finally, it appears as if the only effective methodology to terminate professional and temporary professional employees based upon current amendments to the law is to rely upon a teacher’s criminal history information. If a teacher has a problem in his/her criminal background, that appears to be the most efficient way to terminate a professional or temporary professional employee. Otherwise, school administrators are now going to be mired in statistical paperwork prior to terminating any teacher.

I believe that most labor arbitrators will not support the statistical methodologies in place for a teacher’s discharge. The Legislature’s handiwork has now created a situation that will likely cause districts to have even more difficulty in terminating non-performing teachers. If I were in a position to grade, the Legislature would get an “F” for this effort.


Funding Disputes under PA's Charter School Law

Wow.  Today's PA Commonwealth Court decision limits charter schools ability to pursue tuition payment when a school district does not voluntarily pay.  The charter school law allows a charter school to seek payment of the unpaid tuition from the PA Secretary of Education through withholding the upaid amount from the district's subsidy. 

Today's decision reiterated a prior decision that the administrative hearing process in the charter school law had to be followed (and lays out that process).  It then goes on, however, to say that the only money available to withhold is from the subsidy money from the same year as the tuition which should have been paid by the district.  Thus, if a district failed to pay in 2009, but the 2009 subsidy has already been paid in full to the district and the district has spent, then there is nothing left for the Secretary to withhold for the charter school's tuition.

What does this mean for the Chester Community Charter School?  It means that it will not be paid $7,490,171.75 that it says it was owed.  As I said, "wow."

The case, Chester Community Charter School v. Commonwealth of PA, et al., 135 M.D. 2009 can be found here.

Pa's Office of Open Records and Hearings

When choosing to schedule a hearing, PA's Office of Open Records puts a notice in the PA Bulletin.  Because of that, it is easy to see that since the law has been in effect there are only two cases where such hearings have been scheduled.  The first one was related to the office of the Governor.  According to the most recent PA Bulletin, the more recent case is the Matter of James Eiseman, Jr. v. Department of Public Welfare that will be heard on May 21, 22 and 23.  This is the second time the case has been scheduled, so who really knows if it will take place when they say.

I really know nothing about the case except what the notice says, but even that is intriguing.  It appears that for only the second matter in which the OOR has agreed to hold a hearing, the question is whether the Department of Public Welfare can protect particular information as a "trade secret or proprietary confidential information."  With the OOR's general bias, I would expect that the answer will be "no" or so limited as to make little difference to eveyone else, but who really knows.

Depending on what the information might be and how it is characterized, the ruling could have wide implications whichever way the OOR rules.

Another "Parent behaving badly" story

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.

I sometimes ♥ (heart) the Third Circuit

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.

PA's Safe Schools Act Regulations

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.


Current Employees and Criminal Background, again

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.

Continue Reading...

In PA, a school employee fired for incompetence can still get unemployment

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.

Fired Intelligent Design proponent says not a religious view

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.


PA's Right to Know Law: can you keep it private if the exclusions don't quite fit?

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.

Continue Reading...

The 2012-2013 Bargaining Season Has Just Begun - What is Really Happening in Pennsylvania Teachers' Contract Negotiations?

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.

Finding the End of a Sentence


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.

Continue Reading...

What's the Rule on Cyber-Bullying? Who knows.

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.

Continue Reading...

Hold the Phone!

 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.

Continue Reading...