The Dangers of August 31

 

August 31st and the waning days of summer should be a time of renewal, a fresh school year with new expectations, students bright eyed and ready to learn. The last day of the eighth month can also represent the final day of a worn out, old, and beat up Collective Bargaining Agreement. Teachers, Administrators, and School Board Members are ready for a Contract with a face lift.

 

Unfortunately, the economics of our time have brought teacher negotiations in many corners of the Commonwealth to a standstill. Taxpayers unwilling to part with depleted funding, and teacher unions in denial that we’re going through the greatest economic calamity since the Great Depression.

 

The result: the old Contracts overstay their welcome, way past their expiration date.

 

What happens, then, if teachers begin working the days leading up to August 31st in preparation for the 2010-2011 school year? Teachers couldn’t possibly be entitled to a raise, just because they showed up for work, right? After all, the contract expired, so they would just be entitled to a maintenance of current wages?

 

In the wildly erratic world of Pennsylvania teacher contract negotiations, it should come as no surprise that the end date of a Collective Bargaining Agreement could mean the difference between potentially saving millions of taxpayer dollars while negotiating a successor Contract versus paying out raises across the board while losing complete bargaining leverage in the process. We give you the dangers of an August 31st expiration date for your Collective Bargaining Agreement.

 

What’s more maddening is the unsettling guidance from Pennsylvania Arbitrators on this very issue.

 

In Ringgold School District v. Ringgold Education Association (2005), Arbitrator Talarico opined that the Agreement clearly showed the parties bargained for a separate salary schedule for each year and stated:  "More importantly, salary increases beyond five school years specifically covered by the expired Contract were neither bargained for nor contemplated by the parties."  Therefore, the arbitrator held that the employees were not entitled to vertical salary step movement on the Collective Bargaining Agreement.

 

On the other hand, the more recent Northwest Area Education Association v. Northwest Area School District decision from Arbitrator John Skonier explicitly holds that if a school district starts a teacher's work year prior to the expiration of the prior Contract, step and column movement would be triggered.  This is the opposite of the Ringgold decision. Arbitrator Skonier’s decision was later affirmed by the Pennsylvania Commonwealth Court.

 

If August 31st is the terminal day of your contract you may be facing a salary increase and not even know it.

Update to a problematic placement decision

Two previous entries (here and here) addressed a problematic decision from the Fourth Circuit  arising out of Virginia.  The school district sought further review by the U.S. Supreme Court.  Recently, the U.S. Supreme Court denied further review.  The decision is now final, but not the ramifications.

Update to: special education placement and the problematic decision out of Virginia

Previously, I commented on the a problematic placement decision from the U.S. Fourth Circuit Court of Appeals, A.K. v. Alexandria City School Board.  In that case, the appeals court majority really got it wrong on a technical, but important, meaning about the "location" of a special education placement.

The school district has since filed for review by the Supreme Court.  Alexandria City Sch. Bd. v. A.K., No. 07-541.  The National Boards Association has filed a brief supporting such review and seeking permission to participate in the case. 

The Supreme Court is not likely to grant review.  But it should.  Well, only if it would fix the problem.

Money damages, disabilities, and education

One shoe has dropped as a result of the recent en banc Third Circuit Court decision in A.W. v. The Jersey City Public Schools, 341 F.3d 234 (3d Cir. 2007), which ruled that there is no cause of action under Section 1983 for money damages based on a violation of IDEA and or Section 504.   The full court, aligning itself with other circuit courts and Supreme Court precedent, effectively overruled its 1995 decision in W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995) (unfortunately, the court's posted opinion is incomplete).

Basically, the court in A.W. reasoned that both IDEA and § 504 provide comprehensive remedies.  Because neither statute gives a textual indication that Congress sought to provide those comprehensive remedies in addition to a § 1983 remedy, the Sea Clammers doctrine bars any § 1983 cause of action. 

The problem for educational institutions (but to the relief of plaintiffs) is that the A.W. case addresses only one part of the Matula decision and money damages may still be available directly under § 504

(although probably not under IDEA – in addition to the simple fact that the statute does not say so, see the cases and discussions in Ortega v. Bibb County School District, 397 F.3d 1321 (11th Cir. 2005) among others). 

The court in Matula wrote "plaintiffs may seek monetary damages directly under § 504, as well as the § 1983 claim predicated on § 504."  As such, money damages claims directly under § 504, untouched by A.W., appear to still be viable in the Third Circuit.  On this issue, the Third Circuit is out-of-step with the other circuit courts and it is an issue the Third Circuit, if not the Supreme Court, will likely need to address in the future.

When that day comes, the viability of money damages based on a direct § 504 recovery theory is questionable. Because it involves a complex analysis similar to A.W., based on a cross- and back-tracking comparison of intervening Supreme Court, Third Circuit cases, and various anti-discrimination statutes, I will not give great detail. But in Alexander v. Sandoval, 532 U.S. 275 (2001), the Supreme Court held that private right of action for money damages requires proof of intentional discrimination, casting doubt on Matula’s reasoning, which was based on earlier Supreme Court cases. Indeed, In Pryor v. National Collegiate Athletic Association, 288 F.3d 548 (3d Cir. 2002), (unfortunately the link appears to be dead) the Third Circuit applied the Alexander evidentiary standard.  Recent cases such as Indiana Area School District v. H.H., 428 F. Supp. 2d 361 (W.D. Pa. 2006), show the need for reexamination of the standards for §504 money damages. At a minimum, direct § 504 money damages claims require proof of intentional discrimination or gross negligence.

One shoe has dropped; eventually, the other will, too.