Published in cooperation with the University of Pittsburgh s Tri-State Area School Study Council 2014

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1 EDUCATION LAW REPORT Published in cooperation with the University of Pittsburgh s Tri-State Area School Study Council Volume XXV Number IN THIS ISSUE Blogging Teacher s First Amendment Claim Dismissed School Districts Must Carefully Comply with Procedural Guidelines for Non-Professional Employees or Else Risk Having Employment Decisions Reversed on Appeal School District is Entitled to Immunity Where Claimant Fails to Establish StateCreated Danger Recent Amendments to Child Abuse Reporting Laws Tucker Arensberg PC 1500 One PPG Place Pittsburgh, PA Lemoyne Drive Suite 200 Lemoyne, PA tuckerlaw.com BLOGGING TEACHER S FIRST AMENDMENT CLAIM DISMISSED Munroe v. Central Bucks School District, No (E.D.Pa 2014). The U.S. District Court for the Eastern District of Pennsylvania dismissal former teacher s First Amendment retaliation claim, holding that her blog posts that complained about her students were not protected speech. or their classmates. The administration learned of the blog in February 2011 when a reporter from a local newspaper began asking questions about the blog and its contents. SUMMARY AND FACTUAL BACKGROUND Natalie Munroe was an English teacher at Central Bucks East High School. In 2009, Munroe began a blog titled Where are we going, and why are we in this handbasket? Munroe blogged as Natalie M and did not disclose where she worked or lived. Munroe published a total of 84 blog posts between 2009 and 2010, mostly writing about personal matters such as her food and film preferences, her children and her yoga classes. However, without using names or specific dates, Munroe also complained about what she perceived as the rudeness and lack of motivation among her students, referring to them as jerk, rat-like, dunderhead, whiny, simpering grade-grubber, and frightfully dim. She also wrote that parents were breeding a disgusting brood of insolent, unappreciative, selfish brats. Students discovered the blog and began circulating it on Facebook and other social media. Although no names were used, in some of the posts, students were able to identify themselves The next day, Munroe was summoned to her supervisor s office where she was confronted with printed copies of the blog and placed on immediate unpaid suspension. News of Munroe s suspension attracted the attention of several major news agencies, including CBS, ABC, NBC, CNN, Fox News, Reuters, the Associated Press and the Philadelphia Inquirer. Munroe appeared on several televised interviews and defended her views and insisted that she had been unfairly disciplined. Munroe went on a planned maternity leave on March 1, On June 15, 2011, she received an unsatisfactory rating for the preceding academic term. When Munroe returned to work in August 2011, she continued to receive negative evaluations and her contract was eventually terminated on June 26, Munroe filed a Section 1983 lawsuit Copyright All rights reserved. 1 continued

2 EDUCATION LAW REPORT against the school district, its superintendent and her principal, claiming that they had retaliated against her for the legitimate exercise of her First Amendment rights. The United States District Court for the Eastern District of Pennsylvania granted the defendants motion for summary judgment, dismissing Munroe s First Amendment claims, holding that her blog posts were not protected speech under the First Amendment. DISCUSSION Public employees do not lose their First Amendment rights as a condition of employment; however, courts have recognized the need of the public employer to maintain efficiency and effectiveness in the performance of its official duties. Accordingly, courts must balance the interests of the employee as a private citizen in commenting upon matters of public concern and the interest of the public employer in promoting the efficiency of the public services it performs through its employee. A public employee s speech is protected by the First Amendment when he or she (1) speaks as a private citizen (2) upon a matter of public concern, and (3) the employee s interest in exercising his or her First Amendment rights is greater than the employer s interest in the efficient operation of the public agency. Courts have recognized that public employees have the freedom to participate as private citizens in well-informed public debate, including the employee s own work and courts have attached great weight to the value of statements that give meaningful insight into the operations of a public agency, even if those statements cause some public controversy. However, even when a public employee s speech relates to a matter of political, social or other community concern, the public employer s interest in maintaining its efficient and effective operation may outweigh the employee s interest in exercising his or her First Amendment rights. This balancing test is a fact-sensitive inquiry and context is crucial as the employing agency s institutional efficiency may be threatened not only by the content of the employee s message, but also the manner, time and place in which it is delivered. In this case, the court noted that although the blog occasionally touched broadly on issues such as academic integrity, the value of honor and students lack of effort, she did so only to discuss other personal issues and used a disparaging tone that was likely to generate a strong reaction from anyone connected with the school who may read it. Munroe s blog, as a whole, was dominated by complaints about her students failure to live up to her expectations and negative interactions between herself and her students. The court recognized that the position of school teacher requires a degree of public trust not found in many other positions and that students who read or were aware of Munroe s blog were confronted with her vivid and personal appraisal of their character which contained gratuitously demeaning and insulting language that was inextricably intertwined with her occasional discussions of public issues. The court noted that Munroe s statements attracted considerable negative attention from concerned parents and the public at large and that as a result of expressions of parental concern, the District permitted students to opt out of Munroe s classes. Because Munroe s blog posts negatively impacted the District s effectiveness and efficiency, as well as her own ability to perform her job, the court ruled that her speech was not protected by the First Amendment. PRACTICAL ADVICE Public employees have the right to speak as private citizens on matters of public concern, even if those statements cause some public controversy. However, where the employee s speech focuses on personal issues and private grievances or is unnecessarily inflammatory or uses gratuitously insulting or 2

3 Volume XXV Number demeaning language which impairs the employer s effectiveness and efficiency, any First Amendment protection that would have otherwise protected the employee s speech may be lost. d SCHOOL DISTRICTS MUST CAREFULLY COMPLY WITH PROCEDURAL GUIDELINES FOR NON-PROFESSIONAL EMPLOYEES OR ELSE RISK HAVING EMPLOYMENT DECISIONS REVERSED ON APPEAL Cambria v. Board of School Directors of Exeter Township School District, No. 240 C.C (Pa. Commw. Ct., filed April 30, 2014)(unpublished opinion). The Pennsylvania Commonwealth Court found several procedural and evidentiary errors related to a School Board s removal of a girl s basketball coach for inappropriate conduct. The Court directed the Board to vacate and reconsider its decision. SUMMARY AND FACTUAL BACKGROUND Joseph Cambria was the girl s basketball coach at Exeter Township Senior High School. On April 19, 2011, for reasons not explained in the record, the District Superintendent sent Cambria a letter stating that [a]ny further incidents of inappropriate language, behavior, imprudent comments, or actions that bully or intimidate our athletes will be treated with zero tolerance and that Cambria would be monitored closely over the next year. On October 24, 2012, Cambria scheduled an optional team practice at the school gym. At the same time as the practice, the school sponsored a Safe Halloween event, also at the school. One of Cambria s players, S.S., attended the Safe Halloween event, wearing a Batgirl costume. Cambria noticed the costume, and asked S.S. if he could take her picture with his new cell phone. She said, No, but Cambria took the picture anyway. S.S. was haunted by the incident and contacted the school athletic director, who conducted an investigation. Cambria admitted to taking the 3 picture over S.S. s objection. The District suspended Cambria and recommended termination to the Board. On November 21, 2012 the District sent a letter to Cambria notifying him of the charges against him and of the date of the hearing before the Board. Along with general charges regarding inappropriate invasion of student-athlete boundaries and exercising poor judgment regarding student-athlete boundaries, the letter also alleged a violation of School Board policy 815 (inappropriate use of cameras). However, school district employees admitted that they had not presented this policy language to Cambria prior to the camera incident. S.S. did not attend the disciplinary hearing before the School Board because her parents thought it would be inappropriate for her to do so. Instead, S.S. s mother testified that S.S. had nightmares related to the incident, and had difficulty sleeping. School employees testified about the details of the incident based on what S.S. had told them. Although Cambria s attorney objected to this testimony on the basis of evidentiary rules against hearsay, these objections were denied by counsel for the District. At the hearing, Cambria denied taking the picture, despite contrary prior statements to school officials. He said that on the night of the incident, he had just obtained a new cell phone and he had not yet learned how to use it. He testified that he did not know how to take pictures with his phone during the incident. Instead, he made a clicking noise with his mouth and pretended to take a picture. He said that although S.S. did tell him not to take a picture, she did so in a joking manner. He presented several witnesses who were in the area, including players on his team, to corroborate his story. The School Board rejected the testimony of Cambria and his witnesses, finding that it was not credible. The Board accepted testimony of S.S. s mother and school employees, and held that Cambria violated Board policies and the Pennsylvania School Code continued

4 EDUCATION LAW REPORT by taking pictures of a student without permission. The Board also found that Cambria disregarded the directives included in the District s April 19, 2011 letter asking Cambria to refrain from bullying or intimidating athletes. The Board terminated Cambria based on these violations. DISCUSSION The Pennsylvania Commonwealth Court found that the School District and School Board erred by failing to make Cambria aware of the applicable policies which he violated, by providing inadequate notice of the charges against Cambria and by relying on inadmissible hearsay testimony. The Court remanded the case to the Board for further proceedings but implied that it would be difficult for the Board to maintain its decision since the hearsay testimony had been eliminated. In order to remove a non-professional employee, a school board must comply with the standard at 24 P.S : The board of school directors in any school district, except as herein otherwise provided, shall after due notice, giving the reasons therefor, and after hearing if demanded, have the right at any time to remove any of its officers, employees, or appointees for incompetency, intemperance, neglect of duty, violation of any of the school laws of this Commonwealth, or other improper conduct. Under this section of the school code, the Court explained, [A] school board has discretion to determine what conduct is improper for its employees. However, the Court explained, [T] here must be evidence that the conduct is not in accord with established school district standards, and the conduct must be such as to be fairly considered equivalent to incompetency, intemperance, neglect or violation of school laws. While the school district in this case had an established policy against taking unauthorized pictures of students, this policy had not been communicated to Cambria before the incident in question. Consequently, the Court explained, this policy could not be used against Cambria to support his termination. Similarly, the April 19 letter from the District, warning Cambria to refrain from bullying or intimidating athletes, did not make any mention of taking student photographs. Therefore, according to the Court, that letter did not establish Cambria s knowledge of any applicable school policy. There were other Board policies prohibiting the personal use of cell phones and prohibiting unprofessional communication with students. However, because none of these policies were mentioned in the pre-hearing notice letter to Cambria, the Court held that the school district waived these charges. Finally, the Court found that since S.S. did not attend the Board hearing, other witnesses testimony about what she observed, and about her emotional difficulties after the incident, was inadmissible hearsay. The Commonwealth Court explained that after stripping away all the inadmissible testimony, [W]e are left with [Cambria s] statement that he took S.S. s picture with his cell phone after she said no in response to his query to do so. He also stated at the hearing that she said no in a joking manner. No witness contradicted [Cambria s] hearing statement, in part or in whole, although the Board rejected [Cambria s] testimony at the hearing. The Court concluded that the issue could not be determined from the remnants of the record in light of the procedural deficiencies noted, in particular the hearsay that permeated the school board hearing We cannot conclude, based on the procedurally defective record before us, whether 4

5 Volume XXV Number [Cambria s] conduct can be characterized as being equivalent to incompetency, intemperance, neglect or violation of school laws. The Commonwealth Court vacated the trial court s order upholding the school board s decision, and remanded to the trial court with instructions to vacate the Board s decision and to order the Board to reweigh the evidence after discarding the improperly relied on hearsay testimony and the April 2011 letter. PRACTICAL ADVICE School districts must carefully follow procedural guidelines for non-professional employees, or else risk having their employment decisions vacated on appeal. A school district should have a procedure in place to notify all employees of the School Board policies applicable to employment. The school district should obtain written acknowledgement from each employee that he or she has reviewed and understands the policies. When sending a notice of violation to a non-professional employee, the district should clearly cite each Board Policy or other provision constituting an employment violation. The notice should include the applicable policy language, and should identify the specific employee conduct that violates the policy. Finally, a Board may not rely on inadmissible hearsay evidence at a non-professional employee dismissal hearing. d SCHOOL DISTRICT IS ENTITLED TO IMMUNITY WHERE CLAIMANT FAILS TO ESTABLISH STATE-CREATED DANGER Faruq Robinson on behalf of Imani Batista, a minor v. The School District of Philadelphia, et al., No (E.D. Pa. 2014) (Decided July 8, 2014). The U.S. District Court for the Eastern District of Pennsylvania dismissed Section 1983 claims and related state law claims filed against the District and its administrators for failure to prevent assault of one student by another, finding that the Defendants were entitled to qualified immunity because the allegations in the Complaint did not establish a state-created danger. SUMMARY AND FACTUAL BACKGROUND Imani Batista ( Batista ) was a seventh grader at Andrew Hamilton School in the School District of Philadelphia during the school year. According to the Complaint filed by Plaintiffs, Batista was repeatedly bullied and physically assaulted by another student, Avery Brooks ( Brooks ). Batista s parents met with school administrators multiple times and demanded that the school take affirmative action to prevent further incidents. On November 21, 2011, a meeting was hosted by the District which included Batista and her mother, Brooks and her mother, as well as counselors and a resource officer from the District. During the meeting, Brooks became agitated and punched Batista in the head and face multiple times. According to the Plaintiffs, none of the District employees attempted to stop the assault. As a result of the failure of the District employees to take any corrective action to prevent Brooks from assaulting Batista, Batista s father, Faruq Robinson, filed a Complaint in the U.S. District Court for the Eastern District of Pennsylvania under Section 1983 alleging that the Defendants denied Batista her constitutional right to bodily integrity. The Plaintiffs also raised state law claims including negligent hiring, retention and training. Defendants filed a Motion to Dismiss the Complaint asserting that they were entitled to qualified immunity because the Plaintiffs failed to allege that their conduct violated Batista s substantive due process rights. Defendants further argued that Plaintiffs state law claims were barred under the Pennsylvania Subdivisions Tort Claims Act. DISCUSSION The District Court explained that the doctrine of qualified immunity protects government officials from liability for civil damages unless a plaintiff pleads facts showing that (1) the official violated 5 continued

6 EDUCATION LAW REPORT a statutory or constitutional right and (2) the right was clearly established at the time of the challenged conduct. The Court cited a recent decision of the Third Circuit Court of Appeals which confirmed that public schools, as a general matter, do not have a constitutional duty to protect students from private actors. However, an exception to this general rule exists where the state acts to create or enhance a danger that deprives the plaintiff of his or her Fourteenth Amendment right to substantive due process. One of the elements required to establish a statecreated danger claim is that the defendants must have used their authority in a way that created a danger or made the claimant more vulnerable to danger than had they not acted at all. In reviewing the facts as alleged in Plaintiffs Complaint, the Court determined that the Defendants affirmative conduct in having the meeting did not increase the risk of harm to Batista. Moreover, the Court found that Plaintiffs claims, although couched as affirmative acts in the Complaint, were actually descriptions of conduct that was passive in nature because the allegations related to Defendants failure to prevent harm rather than the creation or enhancement of the harm. In dismissing Plaintiffs Complaint, the Court held that the Plaintiffs could not allege that the Defendants affirmatively acted to create a risk of danger that otherwise would not have existed. The Court also dismissed Plaintiffs state law claims for negligence, finding that the alleged acts did not fall under any of the specific exceptions to governmental immunity. PRACTICAL ADVICE As a general rule, public schools have no constitutional duty to protect students from harm caused by private actors, including other students, unless an affirmative act by the school creates or enhances a danger. However, even though the District was not subject to liability in this case, staff and administrators need to be cognizant of bullying and related district policies when presented with similar facts in order maintain a safe learning environment for students. d RECENT AMENDMENTS TO CHILD ABUSE REPORTING LAWS In April 2014, legislation was enacted that revised the child abuse reporting laws, including the Child Protective Services Law, governing the report of suspected child abuse by school employees. The legislation, most of which is effective December 31, 2014, further defined mandatory reporters and the reporting process required of mandatory reporters. WHO IS A MANDATORY REPORTER School employees continue to be mandated reporters and include those who are directly employed by a school and those who provide a program, activity or service sponsored by the school, such as sports or athletic programs, outreach programs or enrichment programs. Also, independent contractors that are responsible for the care, supervision, guidance or control of children are mandated reporters, unless such contractor has no direct contact with children. The privileges that otherwise apply to confidential communications made to guidance counselors, social workers and school psychologists do not apply to statements or information concerning suspected child abuse. Guidance counselors, social workers and school psychologists have the same duty to report suspected child abuse as any other mandated reporter. 6

7 Volume XXV Number Pursuant to separate legislation, Act 126 of 2012, school entities and independent contractors of school entities are required to provide their employees who have direct contact with children with mandatory training on child abuse recognition and reporting. By this statute, such employees must complete three hours of training every five years. WHEN TO REPORT A mandated reporter must submit a report if he/ she has reasonable cause to suspect that a child is a victim of child abuse under any of the following circumstances: 1 The mandated reporter comes into contact with the child in the course of employment, occupation and practice of a profession or through a regularly scheduled program, activity or service; 2 The mandated reporter is directly responsible for the care, supervision, guidance or training of the child, or is affiliated with an agency, institution, organization, school, regularly established church or religious organization or other entity that is directly responsible for the care, supervision, guidance or training of the child; 3 A person makes a specific disclosure to the mandated reporter that an identifiable child is the victim of child abuse; or 4 An individual 14 years of age or older makes a specific disclosure to the mandated reporter that the individual has committed child abuse. HOW TO REPORT Under the new legislation, school employees must personally make an oral report of suspected child abuse to the Department of Public Welfare via its toll-free telephone number or an electronic report via the Department s website and, immediately thereafter, notify the building administrator. A school employee s reporting suspected child abuse only to a school administrator does not satisfy the statutory mandate. In instances of an oral report, the employee is required to submit an electronic report within 48 hours. The electronic report of suspected child abuse is to include the following information, if known: 1) the names and addresses of the child, the child s parents and any other person responsible for the child s welfare 2) where the suspected abuse occurred 3) the age and sex of each subject of the report 4) the nature and extent of the suspected child abuse, including any evidence of prior abuse to the child or any sibling of the child 5) the name and relationship of each individual responsible for causing the suspected abuse and any evidence of prior abuse by each individual 6) family composition 7) the source of the report 8) the name, telephone number and address of the person making the report 9) any photographs depicting the suspected abuse It is not necessary either that the child appear before the mandated reporter or that the mandated reporter be able to identify the person responsible for the abuse in order for the mandated reporter to make a report of suspected child abuse. PENALTIES FOR FAILURE TO REPORT Previously, the failure of a mandatory reporter to submit a report of suspected child abuse was a misdemeanor of the third degree. As amended by the new legislation, the level of the offense of failure to report is graded upon the severity of the abuse committed against the child. 7

8 MUNICIPAL AND SCHOOL LAW GROUP Matthew M. Hoffman Co-chair John T. Vogel Co-chair Frederick J. Wolfe James G. Morgan, Jr William Campbell Ries Kenneth G. Scholtz Irving S. Firman Gavin A. Robb Edward R. Lawrence, Jr Christopher Voltz Thomas P. Peterson Richard B. Tucker, III Steve R. Bovan David Mongillo Robert L. McTiernan MUNICIPAL AND SCHOOL LAW GROUP Tucker Arensberg, P.C One PPG Place Pittsburgh, PA tuckerlaw.com The Tri-State Area School Study Council at the University of Pittsburgh was established in 1948 as a continuing partnership between school districts and the University. We are the third oldest and second largest Study Council in the country. We seek to work with you to address the issues of practice we all face as we lead educational organizations to improve focus and build organizational capacity. Priorities established by the membership include: 1) timely information dissemination on current research and exemplary practices; 2) research and development technical assistance on projects to meet district needs; 3) professional development programs and workshops on current topics; 4) participation in District clinical experiences to prepare future school leaders and; 5) practitioner participation in academic preparation programs. For more information, please contact Dr. Diane Kirk, Director, The information contained in Tucker Arensberg s EDUCATION LAW REPORT is for the general knowledge of our readers. The REPORT is not designed to be and should not be used as the sole source of resolving or analyzing any type of problem. The law in this area of practice is constantly changing and each fact situation is different. Should you have any specific questions regarding a fact situation, we urge you to consult with legal council. 8

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