The Legal Intelligencer Blog

Racing To Teach Kids Young, But How To Pay for It?

By Wendy Beetlestone
Special to The Legal

It makes sense to provide very young children with the benefits of an enriched educational environment. Practically no one disagrees with that statement. But they do argue over who should pay for it.

The argument took center stage in the recent Pennsylvania Supreme Court case of Slippery Rock Area School District v. Pennsylvania Cyber Charter School, in which the court was asked to rule whether a school district should foot the bill for a pre-school program for 4-year-olds provided by a cyber charter school that served district children.

The cyber charter had provided a pre-school program for children 4 years old and up for which it sought funding from the school district. The school district, which provided a kindergarten program, but only to children 5 years old and older, argued that it was not required to fund the charter school’s program for 4-year-olds.

In agreeing with the district, the Supreme Court referenced the Pennsylvania School Code which allows, but does not mandate, that a school district establish a kindergarten program for children ages 4 to 6. While a district is obligated by the code to provide an education to all children from ages 6 to 21 who live within its geographic boundaries, there is no statutory right to a kindergarten education in Pennsylvania. A charter school, in contrast, is not obligated to offer its services to the entire cohort of 6-to-21-year-olds, but can set the ages or grades it wishes to serve, including setting the age of enrollment for its pre-school.

The issue that drove the dispute was not whether the cyber charter could provide pre-school for 4-year-olds but who should fund the program. The court held that it was not the district. While a cyber charter school may set its own entrance age for pre-school, the school district does not have an obligation to pay where the cyber charter’s admission policy does not align with that of the district.

While the opinion was clear in resolving an issue that has been simmering between charter schools and school districts for some time, it still (of necessity) leaves open the normative question of how to fund pre-school education. While the debate is likely to continue for years to come, the Pennsylvania Department of Education is trying to provide a solution by competing for a grant through the United States Department of Education’s Race to the Top – Early Learning Challenge. The request, which runs into the millions of dollars, focuses on serving high needs children through the provision of high quality programming designed to provide measurable positive outcomes.

Pennsylvania’s 300-page submission details the state’s plan to increase the number and percentage of low income and disadvantaged children who are enrolled in high-quality early learning programs.

It focuses on developing an entry observation tool for kindergarteners to be used by teachers during the first few weeks of a child’s enrollment and to develop a web-based tool to analyze that observation data as well as to provide a resource for families. It proposes to make high-quality accountable programs accessible to more children with high needs – programs such as Keystone STARS, Head Start and Pre-K Counts, as well as licensed nursery schools, school district pre-k programs, and pre-school intervention programs. And, importantly, it proposes to align what children learn in kindergarten with what they are going to be taught in higher grades to ensure that the gains they make in kindergarten are maintained as they go into first grade and beyond. Backing this up is a commitment to improve the education of pre-k and kindergarten teachers.

Pennsylvania should know within the next couple of weeks whether it will get the funding or not. If it does, and the money is spent wisely, many more children in the state will get the good educational start they need to prepare them for success in school and beyond. And that is good for all of us.

Wendy Beetlestone is a shareholder at Hangley Aronchick Segal Pudlin & Schiller where she chairs the law firm’s Education Group.

New Jersey District Court Prevents Disability Rights Organizations from Observing Students with Disabilities in the Classroom

A collection of statewide agencies that have sued the New Jersey Department of Education and the New Jersey State Board of Education for systematically failing to comply with the Individuals with Disabilities Act have met a roadblock in their efforts to build their case.

The organizations sued to enjoin the defendants from violating the rights of children with disabilities to receive a free appropriate public education in the least restrictive environment in Disability Rights New Jersey, et al. v. New Jersey Dep’t of Education, et al. They retained experts to put together a report to show the statewide level of inclusion of disabled students within general education classes and sought to conduct classroom observations of a randomly selected group of students throughout New Jersey to provide data for the experts’ report.

When twenty New Jersey school districts that plaintiffs had subpoenaed refused to allow the observations, the plaintiffs filed a motion to compel. The court denied the motion.

First, it made a distinction between the responsibilities of school districts and the responsibilities of state education authorities. The plaintiffs, found the court, had failed to explain how information concerning whether students are receiving services listed in their IEPs is related to a state education authority’s responsibilities under the IDEA. The responsibility for providing services listed in an IEP resides in a school district, not in the state education authority. The IDEA gives the state only general supervisory responsibilities for the IDEA and plaintiffs had not provided any explanation as to how a failure by a local school district could support the allegation that a state education authority had failed to comply with the IDEA.

The court was also concerned about the apparent subjectivity of the proposed observation process. Although the court had provided the plaintiffs with an opportunity to provide it with a check list of objective bench marks, they had failed to do so.

Furthermore, the court was concerned that the process of information gathering described by the plaintiffs would not achieve its stated goals. More specifically, to the extent that observations would only last two or three hours per student it would be impossible to know with any certainty whether a failure to observe a given service meant that the service was not being provided or that it was simply not being provided in the window of time in which the observation took place.

Finally, the court was concerned that there were no safeguards in place to ensure that the individuals who the plaintiffs proposed to retain to conduct the observations would not pose a risk to children in the classroom.

Wendy Beetlestone is a shareholder at the law firm of Hangley Aronchick Segal Pudlin & Schiller where she chairs the Education Group.

3rd Circuit: No Constitutional Right to Privacy for Sharing "Secret" Opinions

By Wendy Beetlestone
Special to the Legal

The 3rd U.S. Circuit Court of Appeals has rejected a school board member's claim that she had a Fourteenth Amendment right to privacy of opinions she shared in an investigation into an illicit relationship between a teacher and a minor student.

Karen Malleus shared with investigators her view that the student had a vivid imagination and a history of exaggeration, but only after she was assured by the district's lawyer and the school board that any report would remain confidential. In fact, the report was leaked to the press.

Malleus sued, claiming that she had a constitutionally protected expectation of privacy under the Fourteenth Amendment because her opinions had been shared for a limited purpose and with the expectation that they would remain private.

The 3rd Circuit rejected her argument. It surveyed 3rd Circuit jurisprudence, which traditionally has protected only two types of privacy rights -- the right to confidentiality and the right to autonomy. 

The right to confidentiality is limited to an individual's interest in not disclosing intimate facts about him or herself. In other words, it is "the right to be let alone." In this case, even though Malleus intended to share her opinion with a limited audience, she nevertheless volunteered it to others. Furthermore, the opinion she shared was about others and did not concern intimate information (such as sexual, medical or financial facts) about herself.

Neither had she stated a right to autonomy, which focuses on protecting independence in personal decision-making in matters relating to marriage, procreation, contraception, family relationships and parental child rearing.

The 3rd Circuit held that the decision of a school board member to participate in an investigation into how a sexual assault investigation had been handled, while an important matter, does not implicate those types of interests.

Malleus contended that the 3rd Circuit should adopt a third category of privacy. More specifically, she proposed that if someone shares an opinion with the expectation that it will be kept secret, the opinion must be kept confidential. The 3rd Circuit rejected the proposal: it had not previously recognized this as a protected category under the Fourteenth Amendment and declined to do so in this case.

Wendy Beetlestone is a shareholder at Hangley Aronchick Segal & Pudlin, where she is chair of the firm's education practice group. She can be reached at [email protected].

3rd Circuit Remands Title VII Case for Failing to Properly Apply Burden-Shifting Framework

By Wendy Beetlestone
Special to the Legal

In an opinion that helped further flesh out how to apply the burden-shifting framework in Title VII cases -- which was set forth by the U.S. Supreme Court in McDonnell Douglas Corp. v. Green -- the 3rd U.S. Circuit Court of Appeals vacated the U.S. District Court of New Jersey's summary judgment ruling for further proceedings consistent with the guidance it had provided. 

The case, Andes v. New Jersey City University, involved an assistant professor who had filed a Title VII discrimination claim and retaliation claim on the basis of his race (Asian) and national origin (Filipino) when he was passed over for a position as dean and, subsequently, promotion to full professor. 

The 3rd Circuit agreed with the district court that in opposing the university's motion for summary judgment, the plaintiff had provided adequate evidence of a prima facie case of discrimination by alleging that three similarly situated colleagues, who were not Asian or Filipino, were promoted and that at least one of those colleagues did not hold a degree as advanced as his own. 

The 3rd Circuit also agreed with the district court that the university had articulated a legitimate nondiscriminatory reason for its adverse employment actions against the plaintiff by submitting that the employee did not meet all the requirements of the university's promotion guidelines and/or because his colleagues, who were promoted, were in fact more qualified than he.

However, the 3rd Circuit found fault with the district court's conclusion that the plaintiff had failed to show that the university's rationale was pretextual. The district court had required the plaintiff to meet his burden by proving his case, i.e. by proffering affirmative evidence suggesting that illegal discrimination was a motivating factor in the university's decision. 

What it should have done is to assess whether the plaintiff had pointed to sufficient evidence from which a fact-finder might reasonably disbelieve the university's articulated rationale. Accordingly, the court remanded to the trial court to further proceedings consistent with its opinion. 

The 3rd Circuit also held that in resolving the retaliation claim, the trial court had erred in finding that there was no causal connection between the plaintiff's failure to be offered the deanship and the university's subsequent failure to promote him to full professor. 

The trial court focused only on whether there was a temporal proximity between the two adverse employment action, rather than on all circumstantial evidence that would suggest a retaliatory reason for the failure to promote. 

Wendy Beetlestone is a shareholder at Hangley Aronchick Segal & Pudlin, where she is chair of the firm's education practice group. She is also the 3rd Circuit reporter for the School Law Reporter, which will publish this entry. She can be reached at [email protected].

Punishment of School District Not 'Appropriate' Relief Under IDEA

 
By Wendy Beetlestone
Special to the Legal

In C.W. v. The Rose Tree Media School District, the 3rd U.S. Circuit Court of Appeals was asked to define the contours of "appropriate" relief for violations of the Individuals with Disabilities Education Act (IDEA).

The parents of a disabled child had placed the child in a private school after they had requested an evaluation by the school district but before their request for a due process hearing was acted upon more than two years later. The parents alleged that the extended delay between the request for a due process hearing and the ultimate resolution of their dispute with the school district was so egregiously prolonged that an award of tuition reimbursement or compensatory education was "appropriate" under IDEA. 

The 3rd Circuit concluded that despite the broad discretion given to courts to craft remedies for violations of the IDEA, reimbursement for private school fees was appropriate only if both the public placement violated the IDEA and the private school placement was proper under the IDEA.

In this case, the district had offered the student a free appropriate public education. The fact that there was an extended delay in implementing the individualized education program (IEP) had no relevance to the appropriateness of the education offered to the student. Punishment of the district by requiring reimbursement of tuition did not advance the goal of providing education to those with disabilities and was, therefore, inappropriate. 

Similarly, the student was not eligible for compensatory education because compensatory education is designed to compensate students with disabilities who have not received an appropriate education, not to punish schools for failing to follow the established procedures for providing such an education.

 Wendy Beetlestone is a shareholder at Hangley Aronchick Segal & Pudlin, where she is chair of the firm's education practice group. She is also the 3rd Circuit reporter for the School Law Reporter, which will publish this entry. She can be reached at [email protected]

 

3rd Circuit: Subcontractor Cannot Recover on Unjust Enrichment Claim Against School District

By Wendy Beetlestone
Special to the Legal

In the October 2010 case of Wayne Moving & Storage of New Jersey Inc. v. The School District of Philadelphia, the 3rd U.S. Circuit Court of Appeals was asked to address whether a subcontractor could recover on a claim of unjust enrichment against a school district.

The School District of Philadelphia had hired a moving company to assist it with its move from its old headquarters into its new building. Wayne Moving had subcontracted with that company but had no contract of its own with the school district. Numerous difficulties and delays led to additional expenses that Wayne Moving incurred only after conversations with and a work order provided by its point person at the district.

When invoiced by Wayne Moving for the additional expenses, the district refused to pay, upon which Wayne Moving filed suit on an unjust enrichment theory. 

The 3rd Circuit looked to Section 508 of the Pennsylvania School Code to assess the viability of the claim. That section limits how a district can enter into a contract: Every contract in excess of $100 requires a majority of the school board members to vote to approve it. 

In this case, Wayne Moving had no express contractual relationship with the district (only with the district’s contractor), so it could not premise recovery on a contract made pursuant to Section 508.  The 3rd Circuit then considered whether the subcontractor could be said to have an implied contract. It concluded, however, that because the Pennsylvania Supreme Court “maintained a strict interpretation [of Section 508] which serves to preserve precious money reserved for public education,” that section would not allow recovery on an implied contract theory.

The 3rd Circuit then went on to predict that the Pennsylvania Supreme Court would also bar unjust enrichment claims. Accordingly, it directed entry of summary judgment in favor of the district.

Wendy Beetlestone is a shareholder at Hangley Aronchick Segal & Pudlin, where she is chair of the firm's education practice group. She is also the 3rd Circuit reporter for the School Law Reporter which will publish this entry. She can be reached at [email protected].