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EDUCATIONLAW REPORT

Published in cooperation with the University of Pittsburgh’s Tri-State Area School Study Council Summer 2018 Edition

REASONABLE SUSPICION JUSTIFIES DRUG TESTING OF TEACHERby name and Title here

Metz v. Bethlehem Area School District, 630 C.D. 2017 (Pa. Cmwlth. Jan. 4, 2018) (The Pennsylvania Commonwealth Court upheld the termination of a tenured

middle school teacher, concluding that the school district had reasonable suspicion to compel urinalysis drug testing).

BACKGROUND

Timothy Metz (Teacher) was a tenured middle school physical education teacher at the Bethlehem Area School District (District). On February 4, 2016, the District received a copy of a letter that was addressed to Teacher’s counsel as part of a private custody dispute. The letter, sent to the District by opposing counsel in the custody dispute, stated that Teacher had tested positive for cocaine metabolites in a court-ordered drug test. Immediately upon receipt of the letter, the District’s Human Resources Director met with Teacher and his union representative. The Human Resources Director asked Teacher to submit to a drug test, and warned that if he refused to take one, Teacher was putting his job in jeopardy. Despite this warning, Teacher refused to take a drug test. Teacher was then put on unpaid suspension from work.

Four days later, the District sent Teacher a letter directing him to submit to a drug test pursuant to the District’s Drug and Substance Abuse Policy, and

24 P.S. § 14-1418(c), which states that “School boards may require a special medical examination for any school employee at any time.” On February 9, 2016, Teacher submitted to a urinalysis drug test and he tested positive again for cocaine metabolites.

The District sent Teacher a Statement of Charges and Notice of Hearing, notifying him that it would recommend for his dismissal from employment for “willful neglect of duties and immorality.” At the hearing before the School Board, the District presented testimony from the Human Resources Director, the Superintendent, and a physician, who interpreted Teacher’s drug test results to fi nd that Teacher had used cocaine within four to fi ve days prior to the administration of the test. In his defense, Teacher testifi ed that he had never come to work impaired, had never been convicted of a drug-related off ense, and was not a chronic cocaine user.

The Teacher was terminated and appealed the District’s decision to the Secretary

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continued

In This Issue

Reasonable Suspicion Justifi es Drug Testing of Teacher

Student Assaulted by Classmate Cannot Sue School District for Violation of Constitutional Rights

Commonwealth Court Reverses Hearing Offi cer’s Exclusion Based on Parent’s Alleged Non-residency

No Retaliation Claim for IT Employee Fired After Criticizing School District

of Education. The Secretary affi rmed the District’s termination because 1) he engaged in conduct constituting immorality by ingesting cocaine, and because 2) his refusal to initially submit to a drug test on February 4, 2016 constituted willful neglect of duty.

On appeal to the Commonwealth Court, Teacher argued that the District did not carry its burden of proof in establishing that he engaged in immorality, because the only evidence presented — the results of the February 9, 2016 drug test — had been obtained unconstitutionally. Teacher argued that the District lacked reasonable suspicion to order such a test. The Commonwealth Court affi rmed the teacher’s termination and held that the District had reasonable suspicion to conduct the drug test.

DISCUSSION

The Commonwealth Court considered Article I, Section 8 of the Pennsylvania Constitution, which provides that people shall be secure from unreasonable searches and seizures. Although there normally must be “probable cause” for the government to conduct a search, government employees have a lower expectation of privacy than other citizens regarding intoxication. Government employers have a paramount interest in assuring that employees are free from the eff ects of drugs while performing their duties. The Court held that a public school teacher is a safety-sensitive occupation, and that teachers therefore can be compelled to submit to drug testing based solely upon reasonable suspicion, rather than the more demanding standard of probable cause.

The Court found that the District’s receipt of the letter stating that Teacher already had tested positive for cocaine provided reasonable suspicion of drug abuse to compel a urinalysis drug test. The content of the letter appeared to the Court to be reliable, highly specifi c, and corroborated by additional information. In this regard, the Court

EDUCATION LAW REPORT

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noted that the letter was not from an anonymous informant, but was correspondence between the two attorneys in the custody proceeding. The letter and the underlying court order requiring a drug test as part of the custody dispute both were in close proximity to the date when the District received a copy of the letter. According to the Court, this supported the conclusion that Teacher may have been under the infl uence of drugs while teaching. Therefore, reasonable suspicion existed to conduct the urinalysis drug test.

PRACTICAL ADVICE

Because public school teachers hold safety-sensitive jobs, school districts may compel drug testing of teachers based on reasonable suspicion of drug use. Compared with private citizens, public school teachers have a lower expectation of privacy, because school districts have a paramount interest in assuring that teachers are free from the eff ects of intoxication or drug abuse while surrounded by students. When a school district receives trustworthy, reliable evidence that a teacher may be under the infl uence of drugs while on the job, it may command the teacher to submit to a drug test. If the teacher tests positive for drugs, the school district may seek to terminate the teacher for violation of school district policy and immorality under Section 1122 of the Public School Code.

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STUDENT ASSAULTED BY CLASSMATE CANNOT SUE SCHOOL DISTRICT FOR VIOLATION OF

CONSTITUTIONAL RIGHTSby name and Title here

D.M. by Sottosanti-Mack v. Easton Area Sch. Dist., CV 17-1553, 2017 WL 6557560 (E.D. Pa. Dec. 22, 2017). District Court for the Eastern District of

Pennsylvania dismisses § 1983 claim that school district violated student’s constitutional right to

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bodily integrity under the Due Process clause of the Fourteenth Amendment when it failed to

prevent a fifth-grader from being assaulted by another fifth-grader.

BACKGROUND

The Plaintiff and Defendant were fifth grade students in the Easton Area School District (“School District”). In January 2014, the Defendant punched Plaintiff and another fifth grade student in their chests when they told Defendant that he should stop teasing a younger student who suffered from autism. In April 2014, the Defendant demanded that Plaintiff give him a pencil. When Plaintiff refused, Defendant seized Plaintiff’s pencil and jabbed him in the cheek. A written report memorializing both incidents was submitted to school district administrative personnel.

The Plaintiff asserted multiple claims against the Defendant and one against the School District. The claim against the School District alleged a violation of the constitutional right to bodily integrity pursuant to 42 U.S.C. § 1983.

DISCUSSION

To state a claim under 42 U.S.C. § 1983, a plaintiff must show that the defendant “acting under the color of state law, deprived him of a right secured by the Constitution or the laws of the United States.” Generally, the Fourteenth Amendment’s Due Process clause does not impose a duty on the state to protect. However, two exceptions to this general rule are: a) the “special relationship” exception and b) the “state-created danger” exception. Morse v. Lower Merion School Dist., 132 F. 3d 902, 907 (3d Cir. 1997).

The Court found that Plaintiffs failed to demonstrate that either exception is applicable. The court easily dismissed the “special relationship” claim because the Third Circuit has consistently held that a

compulsory school attendance does not create a special relationship between a school and its students. D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1369 (3d Cir. 1992) (en banc) cert. denied, 506 U.S. 1118 (1996).

The Court examined the “state-created danger” exception more carefully, but also found that it did not apply. Under this exception, a plaintiff must allege: 1) the harm ultimately caused was foreseeable and fairly direct; 2) a state actor acted with a degree of culpability that shocks the conscience; 3) a relationship between the state and the plaintiff existed; and 4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all. Henry v. City of Erie, 728 F.3d 275, 282 (3d Cir. 2013).

The Court found that Plaintiff sufficiently alleged that relationship existed between the School District and Plaintiff and therefore satisfied the third requirement. The relationship requirement of the state-created danger analysis “contemplates some contact such that the plaintiff was a foreseeable victim of the defendant’s acts in a tort sense.” A victim is not foreseeable and the relationship element is not satisfied when the state actor creates a threat only to the general population. The relationship element is satisfied, however, “if the plaintiff was a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions.” Because the Defendant was a threat to fellow students (as opposed to the public at large), the Court found that a relationship existed between the School District and Plaintiff.

While the Court found that a relationship existed between the School District and Plaintiff, the Court found that Plaintiff failed to meet any of the other requirements to sustain a claim. The Court found that Plaintiffs failed to sufficiently allege that the harm was foreseeable because alleged prior attacks

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EDUCATION LAW REPORT

Therefore, the Court dismissed Plaintiff ’s claims against the School District.

PRACTICAL ADVICE

While the Fourteenth Amendment usually does not impose a duty upon school districts to protect their students from harm by third parties, including other students, a school district may owe such a duty if it creates a dangerous environment under the “state-created” danger exception.

In this case, the School District acted properly and the exception did not apply. However, when school districts create or permit a dangerous environment to exist, the exception will apply. The Court cited to Gremo v. Karlin, 363 F. Supp. 2d 771, 782 (E.D. Pa. 2005), as an example of a “state-created danger.” In that case, a high school student was attacked by approximately fi fteen students when they threw a garment over his head and repeatedly punched and kicked him. The court found that the school district was aware of repeated actual attacks and knew of violent incidents by the same group of students that repeatedly occurred in the same manner, and in the same locations. Moreover, the school district concealed the attacks and failed to address the unmonitored common areas that were commonly the sites of the attacks. In such circumstances, school districts create a dangerous environment and owe a duty to protect students from third party attacks.

School districts should work with their adminis-trators and solicitors to ensure that all incidents of violence are properly reported and that their schools remain a safe environment for their students.

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by the Defendant were sporadic in time and place and used diff erent methods. Harm is not foreseeable when there was no prior contact, violence, or threats exchanged between the plaintiff and defendants. In this case, the Court found that the harm was not foreseeable because alleged prior attacks by the Defendant were sporadic in time and place and used diff erent methods. Even if the harm were foreseeable, the Court found that Plaintiff s failed to plead that the harm was a “fairly direct” result of the School District’s affi rmative acts.

The Court also found that the School District did not act with a degree of culpability that shocked the conscience. This standard requires a “willingness to ignore a foreseeable danger or risk.” As set forth above, the Court found that the danger was not foreseeable. Even if the risk of harm were foreseeable, the Court found that the School District did not act with deliberate indiff erence to Plaintiff ’s safety because it reported both incidents and did not conceal the attacks.

Finally, the Court found that Plaintiff failed to demonstrate that the School District affi rmatively used its authority in a way that created a danger to Plaintiff or that rendered Plaintiff more vulnerable to danger than had the School District not acted at all. This fourth requirement requires “an allegation and subsequent showing that state authority was affi rmatively exercised.” In other words, it is the misuse of state authority rather than a failure to use it that can violate the Due Process Clause. The Court found that the School District’s failure to enforce a disciplinary policy (i.e., suspend or expel the student for the January 2014 act) is not the equivalent of an affi rmative act.

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COMMONWEALTH COURT REVERSES HEARING OFFICER’S EXCLUSION BASED ON PARENT’S

ALLEGED NON-RESIDENCY

Whitacker-Reid v. Pottsgrove School District, 168 A. 3d 905 (Pa. Cmwlth. 2017) The Pennsylvania

Commonwealth Court reverses the Pottsgrove School District’s exclusion of students based on parent’s alleged non-residency, holding

that the exclusion was not supported by substantial evidence.

BACKGROUND

Marleitta Whitacker-Reid (“Mother”) enrolled her two children (“Children”) in the Pottsgrove School District (the “District”) using an address (“District Address”) that was her grandmother’s residence. The District was contracted by a resident concerning the Children’s attendance in the District which caused the District to investigate the Children’s residency in the District. Following an investigation by District employees and a private investigator, the District concluded that the Mother and Children did not reside in the District and notified the Mother that a hearing before a hearing officer would be held to determine residency.

At the hearing, the District offered testimony from the attendance secretary concerning anecdotal observations and attendance patterns that suggested a “residency concern.” The District also offered testimony from two social workers who surveilled the District Address on several occasions about the time the Children would be getting on the bus to go to school; however, they did not observe Mother at the District Address. An employee of a private investigation firm testified that he went to the District Address on multiple occasions at various times and, on one occasion, he observed Mother drive up to the District Address in a red car and enter the home at a time after the Children had left for school. The car was registered to another person at an address on Charlotte Street located

outside the District. Although the investigator observed the red car parked at the Charlotte Street address, he never saw Mother at that address. The investigator also testified that a search through several “investigative web sites” identified five potential addresses for Mother, which included the District Address but did not include the Charlotte Street address.

As evidence of her residency, Mother offered her public assistance documentation, bank statements, W-2 forms and a Pennsylvania Identification Card which all listed the District Address as Mother’s address. Mother also testified that she has lived at the District Address for three years, that she does not drive and has never driven so it was not her driving the red car and that she has no connection to the Charlotte Street address.

At the conclusion of the hearing, the Hearing Officer issued a proposed adjudication in which he found that Mother did not present “adequate evidence to demonstrate proof of residence.” Based on the anecdotal observations of the attendance secretary, the testimony of the social workers and the testimony of the investigator, the Hearing Officer found that Mother did not reside at the District Address and instead resided at the Charlotte Street address and therefore removal of the Children from the District’s schools was the appropriate remedy. The School Board passed a resolution adopting the Hearing Officer’s proposed adjudication. Mother appealed to Court of Common Pleas which affirmed the adjudication. Mother appealed to the Commonwealth Court which reversed the Hearing officer and the Common Pleas Court.

DISCUSSION

School Code Section 1302(a) sets forth the residency requirements for free attendance at public schools and states, in pertinent part, “[a] child shall be considered a resident of the school district in

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EDUCATION LAW REPORT

which his parents or the guardian of his person resides.” For purposes of School Code Section 1302(a) “residence” means “a factual place of abode evidenced by a person’s physical presence.” The purpose of a residency hearing is to ensure that substantial evidence exists to support a school district’s determination that a student’s parents are not residents of the school district. Substantial evidence is “evidence that a reasonable mind might accept as suffi cient to support a conclusion.”

The initial burden of proof with respect to residency rests with the parent(s) to present evidence that would be suffi cient to satisfy the requirements for enrolling the child in the fi rst instance. Where the school district has enrolled a student, that initial burden has been satisfi ed. The burden then shifts to the school district to present evidence to substantiate its determination that the student’s parents are not residents of the school district.

The Commonwealth Court reviewed the Hearing Offi cer’s fi ndings of fact and concluded that they were not supported by substantial evidence. The series of anecdotes and attendance issues observed by the attendance secretary simply suggested or speculated that there could be a residency concern or issue. The testimony of the District’s social workers that they did not observe Mother at the District Address did not constitute substantial evidence on non-residency because they surveilled the District Address on a limited number of occasions and only around the time busses came to pick up or drop off students.

The Court also concluded that there was no evidence to support the Hearing Offi cer’s conclusion that the Mother resided at the Charlotte Street address as she was never observed at that address and that this address was not one of the addresses identifi ed by the investigator by a potential residence of Mother in his internet search. To the contrary, the Commonwealth Court noted that the evidence established that the Children had been consistently

seen at the District Address and that the only address where Mother had been observed was the District Address. Thus, the Commonwealth Court held that the District failed to meet its burden of producing substantial evidence of Mother’s non-residency.

PRACTICAL ADVICE

Where a school district seeks to exclude children from attendance at its schools based on the parents’ alleged non-residency, the school district must produce substantial evidence of the parents non-residency. When a school district suspects that the parents of children enrolled in the district are not district residents, the school district bears the burden of proving non-residency. Surveillance of the alleged district residence can be helpful to establish that the address is not an actual place of abode. However, the absence of the parents’ physical presence at the alleged residence during the times surveilled likely is not itself suffi cient to establish non-residency. As the Court noted, where school districts have successfully established parents’ non residency, an integral part of the proof has been to establish that the parents have an actual place of abode outside of the district.

dNO RETALIATION CLAIM FOR IT EMPLOYEE

FIRED AFTER CRITICIZING SCHOOL DISTRICT

Wolgast v. Tawas Area Sch. Dist. Bd. of Educ., 16-2240 (6th Cir. 05/25/17): The Court dismissed the retaliation

claim of an IT employee who was terminated following comments criticizing his employer, a

public school district.

BACKGROUND

Tawas Area School District Technology Support Specialist Brandon Wolgast spoke out at school district technology committee meetings, criticizing a district “one-to-one” plan to provide personal computing devices to its students. Wolgast took a

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critical tone, pointing out logistical difficulties with the plan. The superintendent of the district, who attended the meetings, described Wolgast as “the most negative person in the room.” A school board member who attended the committee meetings described Wolgast’s tone as “disrespectful” and stated that Wolgast had the potential to “sabotage the project.” Wolgast e-mailed the superintendent of the district, criticizing the district “one-to-one” plan and requesting a promotion and pay raise in return for overseeing the program.

The district decided not to renew Wolgast’s employment contract and placed him on adminis-trative leave for the remainder of his employment term. Wolgast initiated a federal lawsuit against the district, alleging the district retaliated against him for exercising his first amendment rights. The court rejected his claim, holding that the school district’s interests in providing efficient educational services outweighed Wolgast’s right to free speech addressing matters of public concern.

DISCUSSION

The U.S. Court of Appeals for the Sixth District upheld the district court’s decision, denying Wolgast’s retaliation claim. The appeals court explained that an employee pursuing a first amendment retaliation claim must prove 1) that he engaged in constitutionally protected speech, 2) that he suffered adverse action or the deprivation of some benefit and 3) the speech was a substantial or motivating factor in the action or deprivation. Public employees, such as Wolgast, must satisfy additional criteria: First, the employee must have spoken as a citizen, rather than as a public employee. Second, the employee’s interest in addressing the matters of public concern must outweigh the interest of the employer in promoting the efficiency of the public services it performs.

1. SPEECH AS A CITIZEN

At the District Court level, the school district did

not argue that Wolgast was speaking as a district employee, rather than as a citizen. Consequently, the appeals court held that the school district waived this argument and Wolgast was deemed to have spoken as a citizen.

2. EMPLOYEE INTEREST VERSUS MATTER OF PUBLIC CONCERN

The appeal court held Wolgast’s comments under-mined the school district’s interests in the following ways: 1) Wolgast’s comments were directed at the superintendent and individual board members, with whom Wolgast had a close working relationship; 2) Wolgast conveyed a clearly negative tone at the technology committee meetings and 3) Wolgast made negative, skeptical comments about the one-to-one plan in his e-mail to the superintendent.

In light of these facts, the appeal court held that the school district’s interest in efficiently providing educational services outweighed Wolgast’s right to speak out on a matter of public concern. The court was not swayed by arguments from Wolgast that the one-to-one program was never implemented and that the school district decided to terminate Wolgast before reading his e-mail to the superintendent.

PRACTICAL ADVICE

Typically when a school district employee speaks about matters related to his or her employment, the employee will be speaking as a public employee rather than as a private citizen. In these situations, the employee will not have the same first amendment protection as a private citizen speaking on the same issues. However, as the Wolgast case demonstrates, a school district’s interest in efficiently providing educational services will carry significant weight against an employee’s right to speak regarding school district matters, even when the employee is speaking as a private citizen.

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MUNICIPAL AND SCHOOL LAW GROUP

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, 412.648.1716.

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.

Tucker Arensberg, P.C. 1500 One PPG Place Pittsburgh, PA 15222 412.566.1212

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Tucker Arensberg’s Municipal and School Law Group represents local school districts and municipalities in a variety of legal

matters. Our attorneys are solicitors or special counsel for several school districts/jointures and municipalities in Western

Pennsylvania. In addition, our attorneys serve as special labor counsel to numerous school districts and municipalities in

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The range of services called for in our representation of public bodies is quite broad. Included in that range are: public and

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