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.

Protect your right to the ADA religious exemption

Religiously-affiliated independent schools and colleges need to take certain steps to have the protection offered by the religious exemption in the Americans With Disabilities Act, which states: “The provisions of this subchapter shall not apply to . . . religious organizations or entities controlled by religious organizations, including places of worship.” 42 U.S.C. § 12187. Whether an institution is entitled to the exemption is a factual question. A summary of factors is at the end of this entry.  

The Third Circuit “touched” on the issue of ADA’s religious exemption as applied to private schools in Doe v. Abington Friends School, 480 F.3d 252 (3d Cir. 2007). The plaintiffs claimed Abington Friends School (“AFS”) discriminated against their son, a student with disabilities (ADHD and learning disabled) attending the school. Among other things, the plaintiffs claimed AFS used improper discipline and failed to accommodate him.  

Procedurally, the issue was whether the District Court erred by not allowing discovery first after the school moved for summary judgment based on the exemption. Not surprisingly, the Third Circuit reversed and vacated. But it doing so, it noted as follows. 

Whether [AFS] qualifies for the ADA's religious exemption is a mixed question of law and fact, the answer to which depends, of course, on the existence of a record sufficient to decide it. The ADA's exemption can apply only if [AFS] (1) is a religious organization or (2) is controlled by a religious organization. See 42 U.S.C. § 12187No court of appeals has yet fully examined the ADA's religious exemption, and the undeveloped state of this record makes us reticent to do so now. Whatever the scope of that exemption, though, the District Court here needed to allow the parties to develop the record as to potentially relevant facts. The extent of discovery, of course, is within the Court's discretion, but the circumstances of this case require more than was given.

Doe, 480 F.3d at 258 (footnote omitted). Although the District Court’s decision was reversed on the procedural issues, the trial court’s opinion, Doe v. Abington Friends School, slip. op 04-4647, 2005 WL 289929 (E.D. Pa.), is still instructive. 

The court observed that only one other case, White v. Denver Seminary, 157 F. Supp. 2d 1171 (D. Colo. 2001), had considered the religious exemption under Title III of the ADA. Considering that case, together with the U.S. Department of Justice’s regulations, 28 CFR Part 36, App. B, interpreting the religious exemption, the court in Doe looked to the following factors: AFS is owned and controlled by the Abington Monthly Meeting of the Religious Society of Friends (“church”); the church ensures AFS adheres to Quaker principals, manages AFS’s, and selects the Headmaster; students are taught Quaker principals and values and are required to attend a weekly Quaker meeting; and AFS is classified by the Commonwealth of Pennsylvania as religiously affiliated. 

Later that same year, another district court case addressed applicability of the religious exemption to a disability discrimination claim. Marshall v. Sisters of the Holy Family Of Nazareth, 399 F. Supp. 2d 597 (E.D. Pa. 2005).  Plaintiffs claimed the private religious primary school violated the ADA and § 504 of the Rehabilitation Act when it refused to readmit the student for the following school year. The court found the school properly met the religious exemption test looking at similar factors: Nazareth Academy is a religious organization or is controlled by a religious organization; the Academy is controlled and solely operated by a canon law religious community composed of Roman Catholic nuns; the Academy has a religious mission; the curriculum includes religious instruction and focus on religious principals; and the Academy is a § 501(c)(3) tax-exempt organization based on affiliation with the Roman Catholic Church. 

Both cases repeat the regulatory appendix’s statement that the religious exemption is “very broad.” 28 CFR Pt. 36, App. B (page 682) (2004). The source and authority for this interpretation is not identified in the cases or regulations. The statute itself is quite direct and clear that Title III does not apply to “religious organizations or entities controlled by religious organizations. . . .” It makes no reference to either broad or limited scope. Given the Supreme Court’s recent ruling regarding plain statutory language, see Arlington Central School District v. Murphy, 548 U.S. 291 (2006), and the general tendency to view broad regulatory pronouncements with skepticism, private schools should not put stock into regulatory protection. Rather, taking in all information and the important factors assessed by the court, religiously affiliated schools need to review their currency with those factors and make changes if desired.

Although the claims of disability discrimination against independent schools and colleges are not yet numerous, they do occur. As a matter of responsible risk-assessment, an institution should review its circumstances against the apparent salient factors, including—

  • Curriculum
  • Religious instruction and or service requirements
  • Religious mission
  • Board membership
  • Ownership or control by a religious entity
  • Affiliation or sponsorship by a religious entity
  • Head of school is selected by the religious entity
  • State recognition or categorization
  • Ownership of school property
  • Tax status
  • Funding support

The religious exemption is based on a desire to protect the free exercise of religious belief. Still, there may be limits. In the end, entitlement to the exemption depends on whether there is enough religion in the entity; the law, however, does not say how much is enough. At some point, the facts of the entity’s religious nature could be trumped by the facts of the bad conduct. 

NCLB unfunded mandate lawsuits

The U.S. Sixth Circuit Court of Appeals, by a 2-1 decision, reinstated a lawsuit brought by local school districts and others challenging the No Child Left Behind law as an unfunded federal mandated. NCLB says that nothing in the Act “shall be construed to . . . mandate a State or [local school district] to spend any funds or incur any costs not paid for under this Act.” The schools argued that the federal government should not penalize the schools, such as withholding federal monies, if the schools do not spend local and state monies in order to comply with NCLB.

Congress can pass laws under the authority of the Constitution’s Spending Clause. But when doing so, Congress must also pay for the costs associated with implementing the law. If not, the law must give clear notice to the states of their obligations, such as whether the state and not the federal government must pay. 

The court found that, given NCLB’s unfunded mandate provision, the law is unclear where funding responsibility falls. The U.S. Department of Education put forward two alternative interpretations of the unfunded mandate language (yes, the fact that the same words might have different meanings does not alone prove the schools’ point that the language is not clear). The court also noted that the previous U.S. Secretary of Education’s pronouncements on the issue confirmed the schools’ positions. The court “wondered” how a state official could be on clear notice when the Secretary was assuring the states that the law did not require use of state and local money. 

The court did not decide the ultimate issue, whether NCLB is an unfunded mandate, but did decide the schools have a stated a valid legal claim and sent the matter back to the trial court for further proceedings.

The dissent compared state and local education officials to the denizens of the Land of Oz who simply took the federal money and then complained. The dissent viewed the law as clear and would not have reinstated the case for a full airing. The majority and dissenting opinions are 29 single space pages. Enjoy reading!

Seems to me, however, that the provision is quite clear. States and local school districts are not required to pay the costs of implementing the law.   But then again, maybe I just can’t see well enough.

Student transportation and constitutional rights

The case of Enright v. Springfield School District is a lesson in the important need for a quality program of training for bus drivers. The case resulted in a jury verdict upheld by the court against a school district and in favor of a seven year old student abused on a bus by older students. Liability against the school district was found because the school district did not train its driver and had policies and practices in place that made environment of the bus unsafe.

The school district owned and operated a bus that transported a 17-year old male student with emotional issues to an approved private school, a 14-year old male with learning disabilities to a private school, and a seven year old girl with Asperger’s syndrome to a private school. In short, the two boys engaged in sexualized conduct toward the girl that caused her significant trauma. Parents filed suit seeking relief via Section 1983 for violations of Section 504 of the Rehabilitation Act, the Americans With Disabilities Act, the IDEA, and Fourteenth Amendment due process rights.

When a government agency’s failure to train amounts to deliberate indifference to protected rights, the agency may be liable for resulting harm. In this case, among other things, the school district did not provide any training to bus drivers; did not provide bus drivers with information about the special needs of children on the bus; did not take steps to separate elementary and high school students, or require the bus driver to do so; and simply instructed its bus drivers to use their best judgment whether to report problems. 

In this case, a videotape of the day in question showed the bus driver did not maintain any control over the students or seek to intervene. According to the evidence, the inappropriate conduct, and thus the harm suffered, was the direct result of the school district’s failure to train the bus driver along with other school district policies, such as not creating and enforcing a code of conduct on its school buses (the 17-year old had a history of such misconduct, but no consequences). 

School districts need to give real attention to transportation issues. As noted by the court, creating and enforcing a code of conduct is a critical component of appropriate transportation. And of course, driver training must occur. Such training, however, should be well-planned and helpful (telling a driver to deal with it is not training). Not only should the training involve refresher information regarding the Department of Transportation manual, but also, among other things, include efforts to maintain a continuous loop of communication regarding student behavior and student needs and encouraging student-parent-driver-supervisor communication; identification of situations requiring expert intervention; information about various disabilities; methods of appropriate behavior control; and seating. Of course, this involves more than just the drivers, as it also depends on a comprehensive plan for transportation policies and the participation and recommendations of the many experts resources available to school districts, such as behavior experts.

Many school districts use independent contracted services in addition to or in place of district owned and operated buses. In such situations, school districts need to be sure their contracts properly protect it and its students (such as assurance of quality, insurance, and indemnification), while also balancing independent contractor rules.

Transporting thousands of students daily to many different destinations in itself is difficult and costly, and more so for special needs students. Moreover, students have little ability to protect themselves in the confines of a bus. Given this reality, a school district must take all reasonable and documented steps to assure that it is providing appropriate and safe transportation. And by all means, being sure that it is not making the situation worse.

School construction and mandate waivers

On November 21, 2007, the Pennsylvania Supreme Court in Mechanical Contractors Association of Eastern Pennsylvania, Inc. v. Commonwealth, et al., ruled that public schools may seek a waiver of the multi-prime requirement for construction projects. 

In the past, schools undertaking construction projects had to bid the projects to at least four basic prime contractors - a general contractor, a mechanical contractor, an electrical contractor, and a plumbing contractor.  In the experience of many, that requirement led to higher construction costs and greater claims and lawsuits against schools.  Now, schools can attempt to avoid these problems and expenses by applying for a waiver of the multi-prime requirement from the Department of Education.  The Department must decide, however, whether to grant the waiver. 

Thanks to Ron Williams, Co-Chair of the Fox, Rothschild construction law group for this update.  Contract Ron, or Brian Subers, the other Co-Chair of the construction law group, about construction related legal issues. 

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.

The demise of a charter school, burden of proof, and a quorum

Welcome again Mark Fitzgerald as guest blogger.  This time, he writes about the process of revoking a charter school's charter.  In the case involved the charter school could not overcome declining student performance on the state's accepted measure of annual yearly progress.  The case also presents discussion about the burden of proof (placed on the charter school) and, for anyone running a meeting, a ruling about what constitutes a common law quorum.  Mark is a member of the Education Law Group with a practice emphasis in Labor and Employment. Click here to find out more about Mark’s background and contact information.  Kudos!

The tumultuous five years of the Ronald H. Brown Charter School appears to be over. Earlier this Summer, the Pennsylvania Commonwealth Court in Ronald H. Brown Charter School v. Harrisburg City School District, upheld an order of the State Charter School Appeals Board which had earlier determined evidence was sufficient to support the local school board’s non-renewal of the charter. The Charter School had failed to meet statutory requirements as it related to accepted standards of fiscal management or audit requirements, as well as failed to demonstrate improvement in student academic performance.

In determining substantial evidence supported the Appeal Board’s denial on both the fiscal prong of the statute as well as the academic improvement prong, the court concluded the Charter School had the burden of proof to demonstrate children had in fact made improvements during the time period of the charter. The Charter School vigorously argued that it was not its burden to establish that the students had obtained higher standardized test scores and steady improvement in the quality of performance-based assessments, but rather it was the School District's burden to defend the local school boards determination for non-renewal.

While the Court conceded that the Charter School Law merely provides that local school boards may choose to revoke or not renew a charter at a public meeting based on a school's failure to meet the requirements for student performance, the law says nothing about whose burden it is going forward. In a footnote the court noted, “we advise the school that if a school submits an application to renew its charter, it is the school's burden of going forward to prove that it is entitled to have its charter renewed, including proving that its students obtained higher standardized test scores and they improved in the quality of performance-based assessments. It is not the responsibility of the school district because the school district is not the entity seeking the renewal.”

In defending its determination to not renew the charter, the School District directed the court to years of declining standardized PSSA test scores where 5th and 8th grade math and reading scores declined substantially. The Charter School argued the PSSA tests were culturally biased and the School District did not consider other assessment tools that demonstrated progress. The court concluded the school district and Appeal Board did not have to rely on other assessment measures and could simply rely on the PSSA test,  which is“the uniform test used statewide to measure performance.”

Interestingly, it now appears fairly clear, on an appeal to the Appeal Board, or Commonwealth Court, the Charter School, or in the case of an initial application, the Applicant, will have the burden to prove substantial evidence to overturn the local school district's decision. Who has the burden when a school district decides to revoke a charter before the renewal period, however, is a question that remains unanswered by the Commonwealth Court.

A related issue addressed by the decision dealt with what constituted a quorum under the Charter School Law.  In this matter, on October 14, 2005, the Charter School appealed to the Appeal Board, which is typically comprised of seven members. However, while the appeal was pending before the Appeal Board, there were two vacancies leaving only five Appeal Board members.

On May 23, 2006, during the appeal proceedings, only four of the then-current five Appeal Board members were present, but one of those members had to recuse from the appeal, leaving only three members of the Appeal Board to vote on the Charter School's appeal. Those three remaining members voted unanimously to affirm the school district’s revocation of the charter.

The Charter School argued the three members of the seven member Appeal Board who participated in the vote and voted unanimously to affirm the local school board’s decision did not constitute a quorum under the Charter School Law.

The court concluded common law quorum rules applied to the Appeal Board so that a majority was determined by number of Appeal Board members currently serving, not the total number of appointments that could be made to the Appeal Board. While the appeal was pending before the Appeal Board, there were two vacancies leaving only five actual Appeal Board members. Therefore, under common law quorum rules, the three remaining members still constituted a quorum.

School district implementation of Megan's Law

Guest blogger, Kyle Berman, writes about Pennsylvania’s version of Megan’s Law and implementation of notice and information dissemination procedures for a school district. Kyle is a member of the Education Law Group with a practice emphasis in Labor and day-to-day school operations.  Click here to find out more about Kyle’s background and contact information.

What is a school district to do when it receives a notice concerning a “sexually violent predator” as classified by the courts? There are several duties imposed on a school district following a Megan's Law notification - but you would not know it by examining only the statute itself. The law is not contained at one publicly accessible site, but the Pennsylvania State Police’s website provides some information.

Pennsylvania’s version of Megan’s Law specifies various community notifications, the District being only one of many persons and organizations to be notified of the predator’s

presence. Others include the victim, the neighbors, director of the county children and youth department, directors of any day care facilities and superintendents of schools. The notice is provided to schools both in the same municipality and those within a one-mile radius of the predator’s home, work, and or school.

The police have an affirmative duty to notify the District. However, the statute contains no requirement that the notification to the District result in further notifications by the District. By the same token there is nothing barring you from telling others.

While the statute does not require anything further of the District once the Superintendent has been notified, the regulations pertaining to Megan's Law impose further duties on a District. Specifically, 37 Pa. Code §56.4 provides that:

the superintendent . . . shall disseminate the information regarding the sexually violent predator to individuals whose duties include supervision of or responsibility for students. Those individuals so notified shall include administrators, teachers, teachers aids, security officials, crossing guards, groundskeepers, bus drivers and the like. Individuals whose duties include supervision of or responsibility for students shall be instructed to promptly notify the principal or other designated official if the sexually violent predator is observed in the vicinity. The principal or other designated official shall promptly notify the local law enforcement agency if the presence of the sexually violent predator appears to be without a legitimate purpose or otherwise creates concern for the safety of the students. . . .

Therefore, a District will need to notify the “administrators, teachers, teachers aids, security officials, crossing guards, groundskeepers, bus drivers and the like.” The District also needs to designate an appropriate individual as the point of contact for school personnel who might see the predator in the vicinity of the school. The contact person is also responsible for passing-on information from school personnel to the local police.

Although a District does not need to post the information in the school, the District will need some mechanism to disseminate the information to those that are required to have it.

As above, there is no single source on-line for the actual statute because the courts have repeatedly reviewed and struck-down portions of it. In response the legislature has enacted modified versions of the excised portions. Because of all the changes that have crept into the original Act, it is well worth your while to consult with counsel if you are ever faced with such a notice sent to your school district.