Education Law

Pa's Office of Open Records and Hearings

Kyle Berman — Mon, 07 May 2012 09:47:26 -0500

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

Kyle Berman — Mon, 30 Apr 2012 13:46:45 -0500

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

Kyle Berman — Thu, 19 Apr 2012 09:53:33 -0500

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

Kyle Berman — Mon, 16 Apr 2012 09:39:38 -0500

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

Kyle Berman — Wed, 11 Apr 2012 08:25:19 -0500

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.

The Hon. Judge Chad Kenney of the Delaware County Court of Common Pleas pointed out (as I have said all along) that the language of the statute is clearly directed at prospective employees and not current employees. Additionally, there are constitutional and property rights at stake that cannot be summarily taken away in that fashion. I wonder if he read what I have written on the subject? In any event, for those reasons, he issued an injunction preventing the school from firing the employee.

Since that time, the case has been transfered to the Commonwealth Court, since that court has "original jurisdiction" over aspects of cases like this.

I thought I had written about this February decision back when it first came out, but I did not find a posting it here. Sorry for the oversight.

If you are interested in tracking the progress of the cases pending before the Commonwealth Court, you can do so through the below links.

Jones v. Penn Delco SD

Herdelin v. Chitwood (Upper Darby)

I believe there may be cases pending from elsewhere in the state, but I am not sure of their status.

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

Kyle Berman — Mon, 26 Mar 2012 09:22:44 -0500

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

Kyle Berman — Tue, 13 Mar 2012 13:48:19 -0500

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?

Kyle Berman — Mon, 12 Mar 2012 10:34:15 -0500

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.

In Housing Authority of Pittsburgh v. Van Osdol, a requester wanted to know the addresses of all the section 8 housing in Pittsburgh. The agency denied the request. The requester appealed to the OOR, then the agency appealed first to the trial court then the Commonwealth Court. Ultimately, the Commonwealth Court ordered the records released. It did so despite what it characterized as "disturbing factual allegations concerning the harm disclosure could cause to the tenants whose addresses are sought," that was alleged in the briefs it received.

This gave rise to a very interesting discussion by the court indicating that although the RTKL exceptions are to be narrowly construed, there are instances where an agency is permitted to shield information even where it does not fit neatly into the exceptions.

There may be some cases in which the evidence establishes that disclosure of public records which are not facially exempt will necessarily or so easily lead to disclosure of protected information that production of one is tantamount to production of the other, or that disclosure of the one is highly likely to cause the very harm the exemption is designed to prevent ....

Id at 11.

Ultimately, because there was no testimony or other evidence at the OOR or trial level about the potential harm, or how easily the records released could lead to information which would have been properly excluded from a RTKL release, the court ruled the agency had to release the records. The harm alleged must have been pretty bad, however, since Judge McCullough in her concurrence wanted to send the case back to the OOR so that this shortcoming could be addressed with more evidence added to the record.

Thus, the lesson is not that an agency needs to stay very close to the exceptions but instead, where using an exception that will not quite fit, make sure to get ALL the facts relied upon into the record in front of the OOR and beyond.

The court also reiterated what should be understood by everyone by now -- give all potential reasons for denial when rejecting a RTKL request. Neither the OOR nor the courts will allow an agency to give supplementary reasons for denial later, including ones in the alternative.

The case is Housing Authority of Pittsburgh v. Van Osdol, 795 C.D. 2011 and can be found here.

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

Jeffrey Sultanik — Thu, 02 Feb 2012 07:15:56 -0500

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

Kyle Berman — Thu, 19 Jan 2012 11:54:23 -0500

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.

Through those amendments, people with certain specific convictions can never work in a school. However, people with other serious convictions can work there, but only after waiting a certain amount of time AFTER THE PERSON'S SENTENCE ENDS.

Here's the problem: the information presented to the administration (the rap sheet, or "criminal history record information report" from the FBI and state police) generally only relates when the sentence starts and usually tells how long it is supposed to be. It does not tell if the period under supervision has been extended for any reason. This makes figuring out when the person is eligible for employment in a school very difficult.

I ran into this situation just the other day. A person submitted a rap sheet showing an offense that occurred over 20 years ago with an arrest and conviction almost 15 years ago. This offense was one where the person could be eligible after waiting for a while. The sentence imposed should have ended in plenty of time for the person to be hired now. However, I checked the docket information and found that the sentence was reimposed on several occassions (probation violation?), the most recent being too recent to be hired.

The situation just proves that when reviewing criminal history, relying on the rap sheet may not be enough to ensure compliance with the amendments to §1-111. Many states have online resources to give case information. Pennsylvania is one of them. I recommend school officials use it or ask counsel to do so for them.

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

Kyle Berman — Thu, 19 Jan 2012 09:58:16 -0500

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.

To illustrate the point, here in Pennsylvania, the Third Circuit at one point had two cases with almost identical facts. In each case the student made a MySpace page about a school administrator alleging various false and unsavory facts. After the principal found out, he punished the student and the families sued. The two lower courts split, one saying it was ok for the school to punish and the other said it was not. The cases were appealed to the Circuit Court. There, at first, individual panels each upheld the lower courts' differing rulings. Realizing that was a problem, the court withdrew those rulings and issued new ones that both said those schools could not punish for this off-campus behavior in these particular circumstances.

Unfortunately, those Third Circuit decisions came to their single conclusion using different bases. In fact, when you factor in the concurrences, there are many differing ways of reaching that end. As a result, the rule here in the Third Circuit is not really clear. Hooray for students' free speech rights, right? Well ....

In Pennsylvania, the School Code includes a section on bullying (§1303.1-A), which includes what we would normally consider cyber-bullying. It gives schools jurisdiction over bullying activity taking place outside the school setting so long as there is an impact either on the school environment or on a student's education. This is good, right? Well, this is essentially the Tinker standard that the Third Circuit could not figure out if it wanted to follow. Maybe because it involves student-on-student misbehavior it will be upheld in any future challenge.

This brings us to the Fourth Circuit. That case, also turned down by the U.S. Supreme Court, did involve a student harassing another student online. And there, the court ruled that it is ok to discipline the bullying student, finding that some sort of disruption was foreseeable.

I would hope that Pennsylvania schools do not ignore cyber bullying based upon the Third Circuit cases and that they follow the model of the Fourth. Until there is a clearer rule from the various courts, the school administrators should examine those situations and decide if they need to get involved to protect the students attending their schools.

Hold the Phone!

Pamela Halpern — Mon, 16 Jan 2012 14:04:24 -0500

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.

The new ban clearly does not apply to school district employed school bus drivers. Although school buses meet the definition of a commercial motor vehicle ("CMV"), if the driver of the CMV is employed by a State or a political subdivision of a State, like a school district bus driver, then Federal Motor Carrier Safety Administration ("FMCSA") safety regulations do not apply, even if the school district employed bus driver is engaged in interstate transportation.

The twist here is that many school districts are using private transportation companies, like Durham or First Student, to provide their transportation services. As a result, for school districts using such private transportation services, the ban on hand-held phone use by bus drivers is in fact applicable.

However, while the FMCSA safety regulation may not apply to school district employed school bus drivers, school district bus drivers are still going to have to abide by state or local traffic laws (e.g., Maryland, Philadelphia, and Harrisburg all prohibit the use of hand-held phones) like everyone else.

PA Schools: Firing Employees with Old Convictions

Kyle Berman — Wed, 14 Dec 2011 12:33:35 -0500

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).

A little background: prior to the amendment, there is no question that the statute only applied to prospective employees. PDE even says as much in the BEC. So, where the preliminary portion of §1-111(e) in the pre-amendment version of the statute used to say:

No person subject to this Act shall be employed in a [school] where the report of criminal history record information indicates the applicant has been convicted, within five (5) years immediately preceding the date of the report, of any of the [listed] offenses

the "no person ... shall be employed" needs to be understood to mean "hired." That is partially because the whole statute was read as applying to applicants, but partially because the above quoted language actually says it only applies to applicants.

All of that above quoted preliminary language survives in the amendment -- including the word "applicant" -- with only a change that is not relevant to this issue. That change was to eliminate the limiting parenthetical (the "within five (5) years immediately preceding the date of the report").

The first rule of statutory interpretation is to use the statute's "plain meaning." In doing so, the courts are required to give meaning to every word in the statute. The assumption is that the legislature chose their words with some care. Therefore, the "plain meaning" of a statute must incorporate all the statute's words. Here, and as above, to interpret the "no person" phrase, one must do so without ignoring the later part of the sentence which says "... where the [rap sheet] indicates the applicant has been convicted ...." Using the later phrase, "no person" therefore means "applicant", which emans that the "shall be employed" means "hired." This excludes current employees from that prohibition.

Another interpretation rule is that where only some of the language of a statute changes, the unchanged portion retains the same meaning as it had previously. Here, as I noted, the only change to this language was to remove the limitation language, making it so no applicant who had ever been convicted of a listed offense could ever be employed by the school. But the rest of the language -- and especially the part giving meaning to the "no person" phrase -- must keep the same meaning as it had before.

I noted above that even PDE admits within the BEC that the pre-amendment version of the statute only applied to prospective applicants. Since this language is unchanged, there is no basis to change its meaning.

There are more reasons in the event this ever gets to a court and we have to argue about this. Which brings up the final point: school administrators are now caught in the middle and schools may want to get a court to indicate the correct path to follow.

PDE's position is that any current employee with a prior §1-111(e) conviction must be fired even if the person was properly hired previously. Further, the statute gives PDE authority to take action against any administrator that does not do as required. On the other hand, the employee, and especially one represented by a union with the means to fight such a termination, will likely fight such an action. Thus, where an administrator finds an employee with a prior conviction either step will be wrong from someone's perspective.

This is the type of problem where the courts can get involved to issue a "declaratory judgment" to clarify the law and indicate people's responsibilities under it.

If you wish to review the BEC on your own, it can be found here.

Contracting for Professional Services Under Pennsylvania Law

Jeffrey Sultanik — Thu, 01 Dec 2011 11:50:25 -0500

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.

PA School Districts Not To Pay for Pre-K Charter/Cyber Charters

Kyle Berman — Tue, 29 Nov 2011 13:06:25 -0500

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."

The facts of the case were that some parents in Slippery Rock enrolled their four year old daughter in a cyber charter school's kindergarten. The school district's minimum age for kindergarteners was and is 5. The cyber charter school sought payment from the district and the district refuse. The district claimed that it had the sole power to determine the age at which a kindergartener may start attending school. As above, the PA Supreme Court agreed with the district.

To start, I have a hard time accepting that a cyber charter school can offer a kindergarten class. While young kids are using computers ealier and earlier -- I have seen it -- I cannot believe that a four-year old would be able to sit through computer based instruction requiring keyboarding and sitting still to interact for extended periods.

Regardless, this decision is just as applicable to 'brick and mortar' charter schools. In those, it is conceivable that the charter could have used the Charter School Law as a vehicle to offer glorfied day care to younger kids. This decision will put a stop to that if it was happening.

What it will also likely stop is charter and cyber charter schools offering pre-K programs. Why? Because if the school districts do not have to pay for it, and the law forbid the schools from collecting that tuition from the residents, then there will be no one paying the school.

For those who believe in starting early education, this is likely viewed as a defeat. But for those managing school district budgets, I am sure it is a win.

You're Outta Th ... huh ... no? Still Working in PA's Schools

Kyle Berman — Tue, 29 Nov 2011 09:59:14 -0500

I recently received yet another call from a current school employee (working at a school Fox Rothschild does not represent) who had a problem because of old criminal conduct. Obviously, with all this continuing interest, it is a good topic for discussion.

This call came from a non-professional employee (i.e. someone not requiring a certificate to work in the school) who had an old prior conviction for a §1-111(e) offense. At the time the school hired him, his conviction was more than 5 years old. Therefore, under the old version of the law he was eligible for employment.

Before going any further, it is important that this is a non-professional employee. PDE is interpreting 24 P.S. §2070.9a(2) to mean that all old §1-111(e) offenses (even those that did not used to fall into that category) that a school learns about through the new self-report must be passed-on to the Professional Standards and Practices Commission. Action by that commission can impact on a teacher's license which can then cause the teacher to be fired.

But back to the non-professional employees.

The new language for §1-111(e) starts off with

[n]o person subject to this act shall be employed in a public or private school, intermediate unit or area vocational-technical school where the report of criminal history record information indicates the applicant has been convicted of any of [the listed offenses].

However, this language is directed at "applicants" not at current employees. Restated, the above says 'no school may offer employment to a person where that applicant's criminal record shows a conviction for ....' Oddly, there are some school administrators that are ignoring the plain language of the statute and interpreting that language to mean that current employees who were properly hired need to be fired.

There is a School Code provision covering current employees who get convicted of new offenses, but that is found at §5-527(b). Moreover, it only applies to convictions taking place while employed. Convictions prior to employment do not count.

So, as it applies to this guy, the amended §1-111 will keep him from getting a new position in a new school, but should have no impact on his present position. Because he cannot get a position in any other school, it would seem to me that he might want to do what he could to keep this job.

There are lots of reasons a school employee can be fired, and the above school might have one of those reasons. My point is that as it is written, §1-111 should not be used as the sole basis for firing any current employee.

BB Gun Not a 'Weapon' in Florida Schools

Kyle Berman — Mon, 28 Nov 2011 13:41:52 -0500

The Florida courts have come to the interesting conclusion that a BB gun is not a weapon and reversed the resulting school discipline imposed. This could happen to you.

-- More below --

Initially, it is important to note that this is from the Florida state court (not federal) and is interpreting Florida law, so it has no direct application to Pennsylvania schools. Yet the lesson is a cautionary one for schools everywhere.

In that case, a weapon is defined very specifically as a firearm, any one of a number of other specific but inapplicable items, or the catch-all of a "deadly weapon." That later term is also specifically defined within Florida caselaw as "one likely to produce death or 'great' bodily injury."

Even after reading the case, I am not clear why they did not proceed with the BB gun as though it was a firearm -- it fires a projectile in the same fashion -- but that may just be another facet of Florida law. In any event, the question for the court was whether the BB gun was likely to produce death or great bodily injury. The ultimate decision was no.

Because the BB gun could not be defined as a weapon, the disciplinary actions taken by the school, which the school had taken predicated upon the student possessing a weapon, were reversed.

I suspect that the Pennsylvania courts would have found the BB gun here a weapon, but at the same time this would not have been an issue if the policy under which the student was disciplined had not been so narrow in what it prohibited. In the end, that is the cautionary message: figure out exactly what the school wishes to ban and ensure that the policy will accomplish that end.

The Florida case is A.H. v. State of Florida, 2011 WL 4809171 (Fla.App. 4 Dist.). (Sorry, cannot link to it).

Banged up Pennsylvania Students

Kyle Berman — Tue, 22 Nov 2011 15:46:09 -0500

No, this has nothing to do with any current high profile news. Instead, this is to note that apparently, Pennsylvania's students are not as tough as we (and they) through they were.

Our students are injuring their brains playing sports. In response, the Pennsylvania legislature passed a bill that says once a kid starts looking like he or she has a concussion, that student cannot play again until passed by a doctor.

More below.

The new legislation is found in Act 101 of 2011, titled the "Safety in Youth Sports Act," and its text can be found here. It imposes penalties mostly against coaches for not taking the proper action, but it also totally insulates those coaches from civil liability where they take that stated action.

To help ensure that coaches know what to look for, the Act requires annual education of coaches to recognize the signs of a concussion. It also requires a sign-off by student athletes and their parents/guardians. There are a few more optional but encouraged items, too.

I really do not have a gripe about the Act itself. My issue is more systemic. The legislature regularly saddles schools with requirements without giving those schools funds to accomplish the desired ends. Those are called unfunded mandates. I get reminded of how much schools dislike such unfunded mandates when I read Acts such as this with the accompanying "fiscal note' (in this case it is found here).

The fiscal note in this case reassured the General Assembly that the members can pass the legislation without worrying about an impact on Commonwealth funds. Of course, there is nothing there about the impact on the schools that have to implement the Act.

Obviously, being aware of concussions and taking action to avoid them is worthwhile, but that does not change that this is yet another unfunded mandate imposed on the schools of Pennsylvania.

By the way, for those that thought this only applied to public school districts, I have a surprise: it specifically says that it is also applicable to all non-public schools that have elected to be part of the PIAA. It also applies to both interscholastic sports AND club sponsored sports activities AND sports activities sponsored by school-affliated organizations.

Pennsylvania Schools and What Good are the Criminal Background Checks

Kyle Berman — Tue, 11 Oct 2011 15:31:27 -0500

I was working on something or other yesterday when I got a call from a news reporter in the area. No, I did not get quoted, and it was not to get my life story, but his questions about the amendments to the School Code's §1-111 got me thinking about the uselessness of the new amendment. If any of the legislation's sponsors are reading this, I am sorry.

Mostly, I am focusing on the self-reporting requirement for old offenses that appears at §1-111(j)(1-3). And what's my issue? It has no teeth. If a school employee is newly arrested or convicted of one of the listed offenses, the amendment says he has to report it. Fine. If the arrest results in a conviction, he must report that, too. At that point, the School Code's §5-527 requires that the school district fire him.

But what about the old conviction that the employee is required to report? Nothing. Section 1-111(e) bars anyone from being "employed [by a] school ... where the report of criminal history record information indicates the applicant has been convicted of ...." So, first of all, this only refers to prospective employees not current ones, and secondly, the conviction has to appear on the report of criminal history record information, which the self-report is not.

What is a district to do when it gets a completed self-report form that admits to old arrests or convictions? Unfortunately, the statute does not give any authority to act.

There is another minor hole, but one that is really more academic than real.

The criminal history report from the FBI and PA State Police can be up to a year old at the time the person is hired. An applicant could apply, get their criminal clearances done, THEN go out and commit an offense. If they manage to get convicted prior to starting on the new job, the statute does not provide a mechanism to fire such a new employee.

Are school districts or insurance carriers responsible to pay for autistic students to receive services and treatment in a school setting?

Pamela Halpern — Tue, 30 Aug 2011 10:49:23 -0500

Both- according to a recent Philadelphia Court of Common Pleas decision.

Judge Fox ,in the case of Anthony Burke v. Independence Blue Cross, ruled that the PA Autism Insurance Act ("Act 62"), which went into effect on January 1, 2010, requires that if an insurance carrier chooses to cover a type of treatment or service for any other condition, then it must also cover that treatment or service for autism service disorders regardless of setting. Meaning, even if a health insurance policy otherwise excludes services in schools, Act 62 overrides such an exclusion because Act 62 provides that insurers must pay for rehabilitative care, including applied behavioral analysis ("ABA"). While Judge Fox noted the overlap between IDEA and Act 62, he ultimately decided that the legislature, by creating overlapping statutes, purposely chose to pass some of the cost of ABA services to insurance carriers. Of course the decision in Burke has no relevance when Act 62 does not apply, such as in the case of self funded healthcare programs.

Not surprisingly, Independence Blue Cross filed their appeal on August 16, 2011.