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ACLU and Education Law Center Sue School District of Lancaster for Illegally Denying Immigrant Youth an Education

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ACLU and Education Law Center Sue School District of Lancaster for Illegally Denying Immigrant Youth an Education

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When students from other lands find refuge in America, we are obligated to give them free access to education, which includes teaching these students how to speak English. The school district of Lancaster, however, decided that they were going to take the students and place them in an alternative school, which taught them nothing but sadness and despair.  This article describes the terrible things that 6 refugee students experienced when trying to find freedom in our country.

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ACLU and Education Law Center Sue School District of Lancaster for Illegally Denying Immigrant Youth an Education

July 19, 2016

LANCASTER, PA - The ACLU of Pennsylvania, the Education Law Center, and pro bono counsel Pepper Hamilton LLP filed a federal lawsuit today alleging that the School District of Lancaster (SDOL) has been illegally refusing to enroll older immigrant students with limited English proficiency (LEP) or diverting them to an inferior, privately operated disciplinary school, rather than allowing them to attend the district's regular high school. The plaintiffs include six refugees aged 17-21 from Somalia, Sudan, Democratic Republic of Congo, and Burma who have fled war, violence, and persecution in their native countries.

Under Pennsylvania law, every child aged 6 through 21 has the right to a free public education in that child's school district of residence. Under federal and state law, school districts are obligated to provide students whose primary language is not English with appropriate bilingual or English as a second language (ESL) instruction and language supports.

"Our clients have already experienced much trauma and loss before arriving in this country. Rather than helping them make the difficult adjustment by providing educational resources required by law, the school district has denied them an education completely or forced them into an alternative school, where they are often bullied and don't learn," said Reggie Shuford, executive director of the ACLU of Pennsylvania.

According to the complaint, the school district has refused to enroll the plaintiffs at McCaskey, the regular public high school, even though it has a transitional program called the "International School, which is specifically designed to address the needs of LEP students who are new to the country. Instead, the district rejects their enrollment completely or, if they persist, assigns them to Phoenix Academy, an alternative high school for "underachieving" students run by a private company, Camelot Education.

According to the complaint, Phoenix Academy is run more like a disciplinary school than a traditional public high school. Students are subject to pat-down searches, prohibited from bringing belongings-including books, papers, bags, food, cash over $10, or cell phones-into or out of the school, forced to wear colored shirts that correspond with behavior, expected to "confront" peers "exhibiting negative behavior" and keep logs tallying these confrontations, and can be subjected to physical restraint, as part of the school's disciplinary policies. Phoenix Academy does not offer any special transitional programs for students who are new to the country and do not speak English fluently, and does not have any certified ESL teachers.

Many immigrant LEP students placed at Phoenix drop out because the district does not provide them with sufficient supports to overcome language barriers to enable them to learn the core curriculum, and because of unchecked, persistent bullying in a severe, authoritarian environment that is particularly ill-suited for refugees.

"We are asking the court to uphold the clear right of these children to a meaningful and equal education in their few remaining school years-to give them the chance to learn English and build essential skills and knowledge," said Maura McInerney, senior staff attorney at the Education Law Center. "By refusing to enroll these students or placing them in an inferior educational program that cannot meet their language and learning needs, the district deprives them of the opportunity to make a successful life in their new country."

The lead plaintiff in the case is Khadidja Issa, an 18-year-old refugee from Sudan who arrived in the U.S. in September 2015. Neither she nor her mother speak, read, write, or understand English. SDOL initially refused to enroll Issa in any district school. After several months SDOL relented but forced Issa to attend Phoenix Academy. Issa wants badly to learn English but has not been able to accomplish that goal at Phoenix. Issa regularly feels "scared" and "like a prisoner" due to the environment at Phoenix. No one at Phoenix speaks Fur or Arabic-the two languages Issa understands-and Phoenix staff have never employed a qualified interpreter or translated any documents to help her understand anything happening at school.

In addition to the complaint, plaintiffs also filed a motion to certify the case as a class action.

The problem of school districts refusing to enroll LEP students or placing them in sub-standard programs appears to be increasing around the country. This is the third federal lawsuit filed on this issue in the past fifteen months, with earlier cases filed against school districts in Utica, New York, and Collier County, Florida.

The case is Issa v. School District of Lancaster. The students are being represented by Witold J. Walczak and Molly Tack-Hooper of the ACLU of Pennsylvania; Maura McInerney, Kristina Moon, and Alex Dutton, of the Education Law Center; Eric Rothschild, Kathleen Mullen, Megan Morley, and Kaitlin M. Gurney at the law firm of Pepper Hamilton LLC; and Seth Kreimer of the University of Pennsylvania Law School.

More information about the case, including a copy of the complaint, can be found at www.aclupa.org/issa

Click here to download a copy of the complaint. The case has been assigned Case No. 16-cv-3881.

More information about plaintiffs' counsel can be found at:
www.aclupa.org www.elc-pa.org www.pepperlaw.com
CONTACT: Sara Mullen, ACLU of Pennsylvania, 215-592-1513 x122, [email protected]
Spencer Malloy, Education Law Center, (215) 238-6970 x312,[email protected]

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July 19, 2016 LANCASTER, PA - The ACLU of Pennsylvania, the Education Law Center, and pro bono counsel Pepper Hamilton LLP filed a federal lawsuit today alleging that the School District of Lancaster (SDOL) has been illegally refusing to enroll older immigrant students with limited English proficiency (LEP) or diverting them to an inferior, privately operated disciplinary school, rather than allowing them to attend the district's regular high school.

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As costs skyrocket, Pennsylvania's share of special education funding has fallen

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As costs skyrocket, Pennsylvania's share of special education funding has fallen

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Funding is what keeps a school going, and when the funding is down, education falls. This is specifically what is happening in schools across the state of Pennsylvania as the costs to educate students is on the rise. This article outlines the rise in costs, and the fall in funding.

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Griffin Farrell sits in an East Hills Middle School eighth-grade class learning equations alongside his peers.

It's something the 14-year-old with Down syndrome has done since kindergarten.

Griffin's brothers go to Catholic school. But his mother, Dena Farrell, said the Bethlehem Area School District has the best resources to work with her son's unique learning needs and allow him to be part of a regular classroom.

"It's been nothing but a positive experience. We've always wanted to do this as a team," Farrell said, referring to the district's special education program. "And they do everything as a team."

Griffin's inclusive curriculum has become standard for many special education students.

At the same time, it has become costlier for districts to provide.

According to a new report by the Education Law Center and the statewide coalition PA Schools Work, spending on special education has risen among the state's 500 school districts.

But the study says state funding has failed to keep up with rising costs, creating an ever-widening funding gap.

Spending across the commonwealth on special education increased 51 percent to $4,545,979,595 between 2008-09 and 2016-17.

Meanwhile, the state's share rose 7 percent to $1,041,792,660, over the same period, according to a Morning Call analysis of the study's data.

Craig Larimer | THE MORNING CALL

The state's share of special education funding has failed ot keep up with rising costs.

The state's share of special education funding has failed ot keep up with rising costs. (Craig Larimer | THE MORNING CALL)

In the Lehigh Valley, the sluggish growth in state aid has hit Bethlehem Area the hardest, forcing it to use a larger share of its local revenue to pay for special education.

According to the study, Bethlehem's special education costs grew 79 percent to $37.5 million between 2008-09 and 2016-17.

During that period, the state's share of the funding pie for Bethlehem's special education program fell from 31 percent to 19 percent.

The change meant Bethlehem's share rose 25 percent, according to the analysis.

"Every year we fund a greater portion of this locally," said Stacy Gober, the chief financial officer for the Bethlehem Area School District.

Why special ed costs are rising

School funding experts point to three reasons for the rise in special education costs: A jump in the number of special education students, teacher training for inclusive classrooms and advances in technology used to aid special education students.

According to a report by the Pennsylvania School Boards Association, total school enrollment across the state has dropped 2.6 percent.

But the number of those enrolled who qualify for special education increased by 2.1 percent between the 2010-11 and 2015-16.

For every special educuation student, the Individual with Disabilities Education Act of the Rehabilitation Act of 1973 sets forth mandated rights.

Those include free public education in the least restrictive environment possible, assessments to determine needs and supplementary aids and services as necessary.

APRIL GAMIZ / THE MORNING CALL

Student Griffin Farrell (far right) looks up to listen as a classmate asks a question. In a math class taught by Brant Chrusical special education students are immersed within the classroom at East Hills Middle School. APRIL GAMIZ / THE MORNING CALL

Student Griffin Farrell (far right) looks up to listen as a classmate asks a question. In a math class taught by Brant Chrusical special education students are immersed within the classroom at East Hills Middle School. APRIL GAMIZ / THE MORNING CALL (APRIL GAMIZ / THE MORNING CALL)

Such mandates have led to more integration. As of 2015-16, more than 85 percent of the state's special education students were being taught in regular education classrooms more than 40 percent of the time, according to the Pennsylvania School Boards Association.

Integrating special education students into general education classrooms requires more training and professional development for teachers. It can also mean bringing in one-on-one student aides and next-generation technology that caters to the challenges of an individual student.

If their needs require it, some students remain in special education classrooms with a tailored curriculum. Students who need extra help are sent to Intermediate Unit 20, taking up another portion of the special education budget.

State funding below rate of inflation

Reynelle Brown Staley, a policy attorney with the Education Law Center, said the state funding has increased about 1 percent each year - below the rate of inflation.

Meanwhile, special education costs have been creeping up about 5 percent annually, Staley said.

That means schools experiencing the widest gap between state aid and special education costs have to reach into other parts of their budget, consider raising taxes or forego some of the needs of already vulnerable students, Staley said.

Staley says Gov. Tom Wolf has been restoring basic and other education funding that had been cut and flat-funded during the Great Recession.

She welcomed Wolf's efforts, but said "the increases just haven't been significant enough to match the rate of increase or make up for the preceding years when there was no increase at all."

In 2013, a bipartisan special education funding commission championed by Sen. Pat Browne, R-Lehigh County, took up the funding gap issue.

The end result was a tiered special education funding formula that funnels more money to districts with greater need.

Bethlehem's Gober said the amount being appropriated is still not enough.

"The state has made some improvements, but the pace is not adequate," she said. "The recovery gap is just so large."

Gober said the district tries its best to improve efficiency and invest in intervention as ways to reduce costs. But it's tricky to do so.

"The programs that are offered to the students in the special education arena are very customized, they become very expensive very quickly and they're mandated by federal law," she said.

Even more affluent districts like Parkland are seeing special educations costs rise and having to pull more and more of the balance from their local funds. Expenditures in Parkland climbed 49 percent since 2008-09, costing the district about $22.5 million in 2016-17.

The state's share of Parkland's special education funding pie fell from 22 percent to 16 percent.

"It's an area that's increasing much, much quicker than we can keep up with," said John Vignone, the director of business administration for the district. "That's the predicament. The solution? I don't know. But it is impacting Parkland like everyone else."

Parkland's advantage is growth and development, particularly in the southwestern portion of the district. More growth means more revenue and resources to cover the costs locally, Vignone said. But the status quo cannot last.

Browne said the special education funding commission was set to reconvene every five years to examine the formula and determine whether further changes or tweaks would help students and schools.

He said the commission will gather in January, but pointed out it has no authority to increase the amount of money going toward schools in the first place.

Browne said the desire to funnel more dollars toward education is strong among his colleagues in the state Legislature. The problem is resources.

"It is always - in terms of new dollars - it's always the first priority of the General Assembly and all its members to look to the education budget lines first," Browne said.

The senator agreed that special education funding appropriations needed to be addressed before the disparity becomes insurmountable.

"This is a constant conversation," Browne said.

Leigh Rusnak, Bethlehem's director of special education, said that while it's true special education costs have climbed, the strides made by public schools for these children have been remarkable.

"When you see the progress these students make, it's all worth it," she said. "They're actively impacting the community in which they live."

Once he's done with school, Griffin will find a job; his mother is confident of this. She credits her son's education, the expectations he's always been held to and the exposure to "everyone else."

"Putting the funding into education now is going to help alleviate the need for more funding when kids like Griffin are adults," Farrell said.
swojcik@mcall.com Twitter @Sarah_M_Wojcik 610-778-2283

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SPECIAL REPORT: As costs skyrocket, Pennsylvania's share of special education funding has fallen

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A report released by the Education Law Center shows that while special education costs have been steadily climbing, the amount of state funds allocated to districts for this purpose has been falling. Increasingly, districts must raise the money from local tax revenue.

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U.S. Supreme Court Declines Appeal of Teacher Fired by Jewish Day School

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U.S. Supreme Court Declines Appeal of Teacher Fired by Jewish Day School

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This article examines the ADA and how it failed one teacher in Milwaukee. A teacher claims that she was fired after a parent taunted her regarding a brain tumor that she once had, and was fired after the verbal altercation she had with the parent. The teacher taught at a Private Jewish school, and is now facing struggles with the courts regarding the matter.

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The U.S. Supreme Court on Monday declined to take up the appeal of a Hebrew-language teacher at a Jewish day school who claims she was fired in violation of the Americans with Disabilities Act of 1990.

The case would have given the court a chance to further define the "ministerial exception" it recognized six years ago, in which church and religious school employers are exempt from anti-discrimination laws for employees who are deemed to be ministers of that faith.

In the case denied review, Miriam Grussgott, a former Hebrew teacher at Milwaukee Jewish Day School, says she had no job responsibilities that were religious in nature when she was terminated in 2015 after a verbal altercation with a parent. Grussgott alleges that the parent had taunted her over a brain tumor Grussgott had suffered, and she says she was let go because of cognitive issues stemming from the brain tumor in violation of the ADA.

The school disputed that Grussgott's job served no religious role, saying in court papers that she had originally been hired as both a Hebrew and Jewish studies teacheR. The school disputes the facts of her termination, but its main argument is that its decision to fire Grusgott falls squarely within the ministerial exception recognized by the Supreme Court in a 2012 decision, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission.

Both a federal district court and a panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, held that the ministerial exception applied to Grussgott's teaching position.

While Grussgott's title as a Hebrew teacher alone would not qualify for the exception, Hebrew teachers at the school were expected to follow a unified Hebrew and Jewish studies curriculum known as Tal Am, and the school expected its Hebrew teachers to integrate religious teachings into their lessons.

"Her integral role in teaching her students about Judaism and the school's motivation in hiring her, in particular, demonstrate that her role furthered the school's religious mission," the 7th Circuit panel said in a 3-0 decision in February.

In her appeal to the Supreme Court in Grussgott v. Milwaukee Jewish Day School (Case No. 18-125), the dismissed teacher contends that the school should not qualify for any ministerial exception because it has lay people administering the school, none of Its leaders are clergy members, and it does not have an "ecclesiastical hierarchy" or authority at its head, as she contends is required under Hosanna-Tabor.

In its response brief urging the justices not to take the case, the school says, "Setting aside many factual inaccuracies that Grussgott asserts, accepting an 'ordination test' on internal religious structure would impermissibly entangle courts in policing religious beliefs. It would also exclude from the First Amendment's protection entire religious denominations, which either do not have, or theologically reject, the concept of ordination."

As for whether her job was religious, the school said Grussgott led Jewish prayer sessions, "taught directly from the Torah, attended prayer services in the school's chapel, incorporated Jewish symbolism and ideology into her lessons, participated in observing and celebrating the Jewish Sabbath in school every Friday, and taught Hebrew through an integrated curriculum focused on Judaism and Jewish culture."

The justices had sought a response to Grussgott's self-written appeal after the school had initially declined to file one. But on Nov. 5, they declined the teacher's appeal without comment.

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U.S. Supreme Court Declines Appeal of Teacher Fired by Jewish Day School

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The U.S. Supreme Court on Monday declined to take up the appeal of a Hebrew-language teacher at a Jewish day school who claims she was fired in violation of the Americans with Disabilities Act of 1990.

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Supreme Court Rules on What a FAPE Requires – Has Court Raised the Bar? Or Lowered It In Third Circuit?

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Supreme Court Rules on What a FAPE Requires – Has Court Raised the Bar? Or Lowered It In Third Circuit?

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This article examines a court case that involves a student with autism that struggled to make academic progress once he reached fourth grade. His parents decided to pull him from his home school and place him in a private specialized school, where he flourished. The parents of the student are going to due process with the students home school.

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Posted on March 23rd, 2017
by Timothy E. Gilsbach

On March 22, 2017, the Supreme Court ruled in the case of Endrew F. v. Douglas County School District , for the first time since Rowley, on what a Free Appropriate Public Education (FAPE) under the IDEA requires. In , the Court held that to offer a FAPE, "a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances."

Background In the Case

In , a student with autism was attending his home school district from preschool through fourth grade and was provided an IEP each year.The parents took the position that the student's progress was slow and essentially stalled by fourth grade.As a result, the parents withdrew their child from public school and sent him to a specialized private school, where he made significant progress both behaviorally and academically.Parents filed for due process and sought tuition reimbursement for the private school.

In the due process hearing and the court appeals that followed, the first question to be reviewed was whether the IEP and programming offered by the district was appropriate under the IDEA.The lower courts, finding that the IEP offered was similar to those offered in the past which "did not reveal immense educational growth", but "were sufficient to show a pattern of, at the least, minimal progress", held that the IEP offered was appropriate.

On appeal, the Supreme Court was tasked with determining what standard applies to ruling on whether a FAPE was offered or not. In order to understand the potential impact of , it is important to note that the various Courts of Appeals have reached different conclusions as to what a FAPE requires.The Tenth Circuit, which heard the case, has held for many years the FAPE standard means, "that a child's IEP is adequate so long as it is calculated to confer 'an educational benefit [that is] merely ... more than de minimis.'"

However, the Third Circuit, which includes Pennsylvania, has explained and long held that "at a minimum, '[t]he IEP must be reasonably calculated to enable the child to receive meaningful educational benefits in light of the student's intellectual potential.' " D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 557 (3d Cir. 2010).

What the Supreme Court Said

The Court found that the FAPE standard requires a school to offer an IEP " reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances."The Court further explained that "the question is whether an IEP is reasonable, not whether the court regards it as ideal." (emphasis supplied). The Court goes on to explain that generally, "a FAPE will involve integration in the regular educational classroom and individualized special education calculated to achieve advancement from grade to grade", a standard which appears lower than what has typically been used in Pennsylvania.However, the Court does caution in a footnote that passing classes may not always prove that a FAPE was provided.

The Court goes on to reject the more than de minimis standard applied by the Tenth Circuit as insufficient.However, the Courtalso rejected the standard proposed by the parent in of "a FAPE is 'an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.'" Finally, the Court notes that the application of this standard need to be done on a case by case basis, but notes that some level of deference should be given to school officials.

As a result, for much of the country, which has been using the standard articulated by the Tenth Circuit, the bar has been set higher for what is required as part of a FAPE.However, is other parts of the country, specifically in Pennsylvania, the bar has not been set higher and possibly could be lower given that showing passage from grade to grade may be a showing of a provision of a FAPE, an approach that to date has seen some resistance here, and the change from meaningful to appropriate in terms of the level of progress that must be anticipated in developing the IEP.

Bottom Line for Schools

While the true impact of the Court's decision in Endrew F. will not be known until the Courts and Hearing Officers start applying the same, at the very least the decision does not expand what a FAPE requires in Pennsylvania and arguably the decision may, as outlined above, lower what level progress will be required to show that a FAPE was provided to a student.

If you should have any questions, please contact an attorney from KingSpry's Education Law Practice group or your legal counsel.
School Law Bullets are a publication of KingSpry's Education Law Practice Group. They are meant to be informational and do not constitute legal advice. John E. Freund, III, is our editor.

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KingSpry SCOTUS Rules on What a FAPE Requires

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Posted on March 23rd, 2017 by Timothy E. Gilsbach In , a student with autism was attending his home school district from preschool through fourth grade and was provided an IEP each year.The parents took the position that the student's progress was slow and essentially stalled by fourth grade.As a result, the parents withdrew their child from public school and sent him to a specialized private school, where he made significant progress both behaviorally and academically.Parents filed for due process and sought tuition reimbursement for the private school.

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More than half of Pa. public schools do not have a teacher of color

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More than half of Pa. public schools do not have a teacher of color

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Diversity is and has been a hot button issue in the world we live in. Brown vs. Board of Education was a key component in integrating schools, however, it didn't work out the way it supposed to. This article discusses how more than half of Pennsylvania's public schools have no teachers of color.

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More than 60 years after the Brown vs. Board of Education ruling, an analysis of state data shows persistently stark disparities between the racial composition of teachers and students in Pennsylvania's schools - among the widest gaps in the country.

Just 5.6 percent of Pennsylvania's teachers are persons of color, compared to 33.1 percent of its students.

The data also show 55 percent of the state's public schools and 38 percent of all school districts employed only white teachers.

Nearly three in four of the state's black teachers - 72 percent - work in Philadelphia and Allegheny County, where 54 percent of the state's black students attend.

But even in these two counties, there is a disparity - 40 percent of the students are black, compared to 14 percent of the teachers.

These numbers are based on information provided by the Pennsylvania Department of Education (PDE) for the 2016-17 school year. The nonprofit organization Research for Action (RFA) created a containing the racial breakdown of teachers and students in every school, district, and county in Pennsylvania, as well as summary statistics for the entire state. RFA also published a of the main findings to accompany the new data.

RFA also found that black teachers are more likely to work in elementary schools than in high schools.

While PDE has long made available data on student racial and ethnic composition by school, this is the first time that this information has been made available for teachers. The department released the racial data on teachers in response to a records request by the The Philadelphia Public School Notebook, a partner of Keystone Crossroads.

This allows documentation, for the first time, of the extent of these disparities on a school-by-school basis.

This new analysis supplements RFA's prior policy , called "Patching the Leaky Pipeline," on recruiting and retaining teachers of color across Pennsylvania.

Studies show that students of color, black students in particular, benefit from having teachers who look like them, said Erica Frankenberg, an associate professor of education at Pennsylvania State University who has researched desegregation and diversity.

White students also benefit; it is crucial to have diverse viewpoints in all schools, Frankenberg said. Teachers of color bring added perspectives and influence everything from curriculum choices to what music the band or orchestra plays.

In faculty meetings, "they bring up issues that white teachers may not have had in their experience. Most white teachers grow up in segregated environments," she noted.

Jeffrey Ulmer, director of human resources in the West Chester Area School District, affirmed the need for teachers of color "to give their cultural experience and a different worldview." White students make up 78 percent of West Chester's enrollment; five percent are black.

"Once our kids are in the real world, they are not going to deal with just the white population," he said. "They have to work, share, and grow with people of all cultures, colors, creeds, and denominations."

RFA's brief cited research showing that a diverse cadre of teachers leads to higher expectations and better outcomes for students of color, including an increase in graduation rates. Having teachers of color on staff also improves school climate and a reduces "implicit bias" in decision making.

According to a recent University of Pennsylvania study, the nation as a whole is increasing the supply and the diversity of its teachers.

But this is not happening in Pennsylvania. Philadelphia's teaching corps is growing more white, according to the state data. And suburban districts around Philadelphia, even those with high black student populations, are having trouble recruiting teachers of color.

The trends cited in the study were tracked over a 30-year period and "vary across jurisdictions," said Richard Ingersoll, the Penn study's lead author.

The Pennsylvania Department of Education realized the need for diversifying its teacher corps in for implementing the federal Every Student Succeeds Act (ESSA). It was one of only six states to make recruitment of teachers of color a priority.

Reaching this goal, however, is becoming more difficult in Pennsylvania, where the number of people of any background who pursue teaching careers is plummeting. Between the 2009-10 and 2015-16 school years, the number of teaching certificates issued in the state dropped from 14,247 to 4,412.

The ESSA plan notes that while the number of graduates in the state earning teaching degrees has decreased by 39 percent since 2000, African American graduates in education have decreased by 71 percent. In 2014, for instance, just 29 African American men and 20 Latino men obtained teaching degrees in the state.

This decline can be seen starkly in Philadelphia. In 2001-02, one in three Philadelphia teachers - 34 percent - was black. Today, the number is at 23 percent.

The chart below shows the percent teachers of color compared to the percent students of color in Pennsylvania public schools that had at least one teacher of color in 2016-17.

The statewide picture

Across Pennsylvania, many of the whitest schools have an all-white teaching force, whereas schools with more students of color usually employ a higher percentage of teachers of color.

Philadelphia and Chester-Upland are the only school districts in Pennsylvania where less than 80 percent of teachers are white - the number is 69 percent for Philadelphia and 60 percent for Chester-Upland. These two districts also employ the highest proportion of black teachers - 24 percent in Philadelphia and 38 percent in Chester-Upland.

In other school districts, the proportion of white teachers ranges from 81 percent in diverse districts such as William Penn and Cheltenham to 100 percent in more than 200 districts, including Scranton. Out of the 499 school districts in Pennsylvania, 38 percent have no teachers of color. These districts with all white teachers contain almost 20 percent of all the students in the state.

The map below depicts these stats, with the districts without any teachers of color depicted in red.

Harrisburg, the state capital, has one of the lowest proportions of white students among Pennsylvania school districts (3 percent), while 57 percent of its students are black. Yet, only 14 percent of its teachers are black and 84 percent are white.

Asian and Hispanic teachers are also underrepresented across the state. For a student population that is almost four percent Asian and 11 percent Hispanic, only 0.6 percent of teachers are Asian and one percent are Hispanic.

Allentown and Reading are two large school districts that exemplify just how few Hispanic teachers there are. Each district has a large Hispanic student majority, but Hispanic teachers only comprise 3 percent of their teaching force.

This trend is seen even in Philadelphia, where the white student population in public schools is around 15 percent. The data show that schools with relatively high numbers of white students usually have higher percentages of white teachers than the city as a whole. A few have no teachers of color at all.

This trend accelerated after the 2010 dissolution of a court order, enacted during a longstanding desegregation case, requiring that black teachers be represented in each school in rough proportion to their percentage citywide.

The Notebook's review of the statewide data found that racial disparities are also evident among schools in the Philadelphia suburbs in Bucks, Chester, Delaware, and Montgomery counties.

Just more than half - 52 percent - of the schools in the Philadelphia suburbs have no black teachers.

While urban and suburban schools in Pennsylvania that serve more black students generally have more black teachers, this is not always the case. For instance, the Harambee Institute of Science and Technology Charter School in Philadelphia, which was founded with an Afro-centric focus, has an all-black teaching force and student body. On the other hand, the Urban Pathways 6-12 Charter School in Pittsburgh has an all-white teaching force, even though 98 percent of its students are black.

There are plenty of schools across the state like Urban Pathways with white teachers in classrooms of black students, but none showing the opposite trend - a high proportion of black teachers in predominantly white schools.

Importance of diverse educators

Sharif El-Mekki, principal of Mastery Charter-Shoemaker campus and a founder of the Fellowship : Black Male Educators for Social Justice, a national organization, said that students of color benefit from having teachers of the same race.

"Teachers of color have a tremendous impact on students of color, because they bring a shared sense of responsibility and urgency," he said.

Black teachers, in particular, are necessary to help black students "develop a positive racial identity and ensure they have the tools to combat all of the negative images and messages they receive about them, their people, and their community," he said.

But there is another side to the story: researchers say white students benefit from having teachers of color as well.

"In this increasingly diverse country, white students need access to teachers of color so that they can learn how to navigate society," said Travis Bristol, assistant professor at the University of California, Berkeley. "White children lose out when people think that only children of color need teachers of color."

Bristol, a former public high school teacher, has produced extensive research on how education policies affect teachers of color.

A lack of Asian and black teachers is seen in Upper Darby, where 15 percent of students are Asian and 47 percent are black. There, only one percent of teachers are Asian and three percent are black. The remaining 96 percent of teachers are white.

Dan Nerelli, former Upper Darby superintendent, said that even so, the district has made significant improvement in diversifying its teacher population.

He said that in 2009, only 1.7 percent of Upper Darby teachers were people of color, compared to four percent in 2016-17. "We almost doubled the numbers - four percent is still not good, but it's better than 1.7 percent," he said.

Nerelli described various strategies the district undertook to recruit more teachers of color, including "advertising our jobs...to reach more candidates" and "visiting some historically black colleges, one of which was Hampton University" in Virginia.

But there were still insufficient candidates, regardless of race or ethnicity, who could meet Upper Darby's need for more special education, science, and math teachers. The overall shortage of teachers, especially in these areas, translates into an even greater lack of teachers of color, making it difficult for districts to increase teacher diversity, he said.

While having teachers of color in predominantly white schools is beneficial, Alice Ginsberg at the Branch Alliance for Educator Diversity believes that it is also important for all teachers to talk about diversity.

"It's really important that all teachers, whether of color or not, know how to go into a classroom, engage all students, and bring in a lot of different cultural examples to the curriculum," she said.

Christopher McGinley, a Philadelphia Board of Education member, said that teachers need to have "the ability to relate and connect with people who share their racial identity and people who don't."

"Often, people immediately relate better to people who look like them," he said. "But beyond that initial point of engagement, it has to do with the teacher's ability to develop a positive rapport with the student."

McGinley, who served as superintendent in both Cheltenham and Lower Merion, acknowledged that teacher diversity is important for all school districts, no matter the racial makeup of their students. "Just because a district is predominantly white, doesn't mean it's a good practice to have a faculty that's entirely or predominantly white," he added.

A matter of expectations

Some research indicates that the dearth of black teachers could further perpetuate the achievement gap between black students and their peers. A from Johns Hopkins University found that white teachers tend to predict lower levels of academic performance for black students, compared to black teachers.

El-Mekki explained that higher expectations from teachers of color often translate into "a high level of support that can create amazing outcomes for students. On the contrary, when you have low expectations, students don't do well and we see the results of that across the country."

He pointed out that in addition to the diminishing pipeline of African American teachers, retaining qualified candidates is difficult. Teachers of color suffer from higher attrition rates because they tend to teach in more challenging schools, where most students come from less privileged communities. Many of these students have suffered from , and transience is more common.

"A lot of black teachers choose to work with black students whom they feel have been marginalized the most, which puts them at schools that tend not to be white at all," El-Mekki said. "There's a tendency for them to dive into the biggest fires, but because so many black educators have that fireman mentality, it can also lead to a faster burnout."

Besides personal exhaustion, inadequate support systems for teachers of color in challenging school environments can also contribute to higher attrition rates.

"A lot of policymakers believe that just by recruiting a teacher of color to work in a challenging school, that person will automatically be successful," said Bristol, the Berkeley professor.

"But those teachers don't have the resources or the ongoing professional development that they need to be successful, so they leave those schools at a higher rate compared to their peers."

The poor physical conditions in school buildings, especially those in low-income districts that cannot afford sufficient repairs, can make teaching even more difficult. Jerry Jordan, the president of the Philadelphia Federation of Teachers (PFT), described various environmental hazards that some teachers constantly face, from the lack of air conditioning on hot summer days to the presence of toxic substances in classrooms.

"It's very easy for someone to say, 'I don't want to do this anymore. I want to go to work, be respected, and treated like a professional,' so they leave the system," Jordan said.

Teachers of color who remain in teaching face a new set of challenges that come with navigating race relations in a mainly white profession. They may have to undertake additional responsibilities related to students of color, such as disciplining students or communicating with their families.

Kenneth Hung, a social studies teacher at Central High School and board member of Asian Americans United , has been teaching for 20 years. Hung, who is Taiwanese-American, said that teachers of color were often expected to "deal with every kid of color who looks like [them]."

"I shouldn't be expected to understand every Asian person from Turkey to Japan...let alone I shouldn't be the only person to teach Mandarin or be the expert on China," he said. "There's a big burden to be the spokesperson, the advocate, and the social worker [for students of color]."

These expectations can result from assumptions about the roles that teachers of color should play in schools. Some may expect East Asian teachers to "have parties where they teach the school how to make fortune cookies," or for "black male teachers to discipline black kids," Hung said.

"We need to create environments where teachers of color are valued, but not tokenized, for the perspectives they bring," he said.

El-Mekki said that the role of disciplinarian is often thrust upon the few male teachers of color by school administrators.

Some supervisors "would send their problematic kids - kids that they struggled with - to the black men on their team and ask them to be the disciplinarian...the black teachers felt they were being held accountable for students misbehaving in other people's classrooms," he said.

Since the school environment defines a teacher's experience, Bristol thinks that principals and even teachers themselves need to understand how racial biases can affect teachers of color.

"Principals need support to understand why these practices are happening, to be aware and attentive to them," he said. "We also need to help white teachers to understand the varying ways that bias happens in their own building."

Besides supporting current teachers of color, recruiting more candidates of color into teacher preparation programs is also critical, but educators say this is only possible when teaching is seen as an attractive profession.

"We're just having a problem getting people who want to be teachers, because public education has taken such a bashing and there has been so much negative press on public schools," said Mark DiRocco, executive director of the Pennsylvania Association of School Administrators.

PFT president Jordan echoed that. "Teachers have to be shown more respect. Teaching has to be seen and treated as a profession...because it is very important in helping to educate our future [generations]."

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More than half of Pa. public schools do not have a teacher of color

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More than 60 years after the Brown vs. Board of Education ruling, an analysis of state data shows persistently stark disparities between the racial composition of teachers and students in Pennsylvania's schools - among the widest gaps in the country.

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Truancy is a true issue in schools today. Students attendance has hit lows for a varying number of reasons, however, the laws regarding truancy have gotten more strict over the years. In regards to cyber school, however, the laws have been changed in order to enforce consequences regarding not attending school.

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PDE recently issued Penn*Link guidance to clarify various aspects of Pennsylvania's new truancy law, Act 138 of 2016 ("Act 138 Penn*Link). It appears the Pennsylvania Department of Education (PDE) views Act 138 to affect the obligations of charter and cyber schools relative only to their obligations to track and report attendance data directly to PDE, not altering districts' obligations to enforce student attendance. Because there is no reference to "enforcement" in the Section of Act 138 specific to charter and cyber school obligations, Act 138 increases the obligations of these entities in their policy, reporting, and hearing attendance duties, and can be interpreted to require charter and cyber schools to enforce attendance. In particular, Act 138 specifies the appropriate venue (court) in which a truancy citation must be filed for a cyber or charter school student, thus leaning towards the interpretation that such obligation to file is now that of cyber or charter schools. Organizations such as the Pennsylvania School Boards Association (PSBA) have taken steps to reach out to PDE to better understand PDE's stance on truancy enforcement and possibly influence PDE to reconsider its own position on the same, such that Act 138 requires cyber and charter schools to enforce truancy as the alternative way to interpret the truancy law.

Furthermore, despite the fact that PDE has yet to issue an updated Basic Education Circular (BEC) (which the Act 138 Penn*Link says PDE will soon release), it is time for districts to consider the changes that current policies, procedures, and notification venues (such as websites) must undergo to accurately reflect Act 138 in practice. Ideally, the BEC should be issued prior to any policy changes to better understand PDE's expectations in implementing this new truancy law with such broad policy-change implications. However, as districts are well-aware, with the dawn of spring on the horizon, the publication and distribution of policies and handbooks for school year 2017-2018 will be taking place before we know it. That said, and in light of PSBA's goal to publish its model policy in late March / early April, the Stock and Leader School Law Group is advising districts to begin the process of policy revision relative to Act 183. In practice, districts should pull for review and edit the following policies and their associated administrative regulations: Special Education, Nondiscrimination for Qualified Students with Disabilities, Homeless Students, Student Assistance Program, Homebound Instruction and Temporary Medical Excusal, and Withdrawal from School. As districts engage in this process, they should be cognizant of how the differences in the rights of and procedures for truant students fourteen (14) years of age and younger in comparison with the rights of and procedures for truant students fifteen (15) and sixteen (16) years of age, establishes a variance in the information to be published in Student Handbooks and on websites associated with elementary, middle and high schools.

This blog is intended to be a reminder that your partner in education, the Stock and Leader School Law Group, is always primed to assist you in crafting district-specific solutions and being proactive in addressing the needs of the students you educate. Please contact the School Law group if you would like assistance in an efficient review and revision of policies and procedures implicated by the new truancy law, Act 138.

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Implications of the New Truancy Law | Stock & Leader

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PDE recently issued Penn*Link guidance to clarify various aspects of Pennsylvania's new truancy law, Act 138 of 2016 ("Act 138 Penn*Link). It appears the Pennsylvania Department of Education (PDE) views Act 138 to affect the obligations of charter and cyber schools relative only to their obligations to track and report attendance data directly to PDE, not altering districts' obligations to enforce student attendance.

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Family Medical Leave Act "Updates" the definition of 'spouse' 

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Family Medical Leave Act "Updates" the definition of 'spouse' 

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The Department of Labor released a Final rule revising the definition of spouse under the FMLA, which took effect in March of 2015. Before the ruling, FMLA did not entitle an employee to take leave in order to take care of same-sex spouse with a serious health condition. The ruling also defines a spouse based on the place where the marriage was entered into rather than the state that the employee resides.

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Liability due to Injury during inside track practice

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Liability due to Injury during inside track practice

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Injuries can happen all the time while students are in the care of teachers and coaches. When teachers and coaches fail to see potential dangers, unintentional neglect can occur. A case was brought against the Dowingdown Area School District under the Tort Claims Act.

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Posted on June 27th, 2016
by Timothy E. Gilsbach

In a case that cuts deep into a school district's historic immunity for negligent supervision,the court in B.D. v. Downingtown Area School District, No. 15-6375 (E.D.Pa.Jun. 20, 2016), took the unusual step of finding that the improper handling of a track practice held inside and resulted in a student being injured could be a case of state-created danger under Section 1983,and falls within an exception to immunity under the Tort Claims Act, if the facts as alleged are proven to be true.

Facts Of The Case

Due to inclement weather, a high school track coach decided to have practice inside, which was typical for occasions when there was inclement weather.At one point in the practice, in which students ran through the halls of the high school, the route established by the coaches was altered so that the middle-distance runners' and sprinters runners' courses intersected.

After several "small collisions and/or near misses", the plaintiff-student collided head on with another runner who weighted 60 pounds more than the student and was injured. Parents and student brought suit against the district and the coaches.

What The Court Said

The court, applying a state-created danger theory to the case under Section 1983, found that under the facts alleged the actions of the coaches "significantly increased the risk that [Student] would be injured." Applying the four elements for a state-created danger theory, the court found that the plaintiffs alleged sufficient facts to support each.

First, the court found that there was foreseeability of the harm that occurred on the part of the coaches, explaining "[i]ndeed, experienced track coaches who are well aware that track is non-contact sport would sufficiently be put on notice of the prospective harm to their student athletes if several of those student athletes has either collided or nearly collided due to overlapping courses."

Second, the court found that the intent requirement could be established by showing deliberate indifference and found that the coaches' failure to change the track course after they became aware of the near misses or minor collisions was sufficient to establish the same.

Next, the parties agreed that the nature of the relationship between the coaches and the students was sufficient to show the requisite relationship necessary to prove a state-created danger claim.

The fourth prong, an affirmative use of authority, required that the plaintiffs show the district or its employees put the student in harm's way, rather than merely failing to get the student out of harm's way.In this case, the court found this element was met due to the fact the coaches established the running course and instructed the students to run on that course.

The court further found that the district, in addition to the coaches, might be liable because there were sufficient facts alleged, if proven, to show that the coaches were the final decision maker on these issues that were not reviewed by any higher authority or because the district knew of and consented to this conduct, namely the use of the hallways for a purpose for which it was not designed, athletic practices and the district consented to the same by not putting a stop to it when they knew this was occurring.

Moving to the Tort Claims Act, the court found that plaintiffs had alleged a sufficient case to show the exception for real property applied because the plaintiffs alleged that the accident occurred, in part, due to the flooring in the hallway and the absence of mirrors or other means for the runners to safely run through the intersection. However, the court appeared to suggest that this case just barely made out such a claim.

Bottom Line For Schools

School entities need to be aware of this new approach to injury claims and take actions to insulate themselves from liability.For example, if there are practices or customs in the school that would appear unsafe or which has led to injury or near injury, district should put a stop to them.In addition, school entities need to ensure that they know what school staff members acting on their behalf are doing and establish policies that prohibit conduct that is likely to lead to injury, so that if employees encourage students to engage in this type of behavior, the school entity can make it clear they told the employees not to do so.
School Law Bullets are a publication of KingSpry's Education Law Practice Group. It is meant to be informational and does not constitute legal advice. John E. Freund, III, is our editor.

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KingSpry Track Practice Injury May Result in School Liability

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Posted on June 27th, 2016 by Timothy E. Gilsbach Due to inclement weather, a high school track coach decided to have practice inside, which was typical for occasions when there was inclement weather.At one point in the practice, in which students ran through the halls of the high school, the route established by the coaches was altered so that the middle-distance runners' and sprinters runners' courses intersected.

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Transgender issues in the Public School Setting

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Transgender issues in the Public School Setting

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This article discusses the pubic school obligations for students who are transgendered, or have identified as a gender other than what's on their birth certificate. This article discusses the ways the court stands in the favor of transgender student's rights, and notes the variety of ways to accommodate every students privacy. Further, the article discusses Title IX coverage regarding the definition of the word "sex" in terms of using the appropriate bathroom. Court cases brought by transgender students typically include that forcing them to use sex-segregated facilities based on their sex assigned at birth instead of based on gender identity violates their right to equal protection under the law as protected by the Fourteenth Amendment to the Constitution.

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Transgender Legal Update (June 1, 2018) | PSBA

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For many years, PSBA has urged its members to work with transgender students and their families to meet the needs of individual students and to provide all students with a safe and supportive school environment. In addition to regular updates on the law, PSBA has provided in-depth training and materials on practical ways to accommodate...

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Philadelphia Court case regarding Bullying

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Philadelphia Court case regarding Bullying

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Failure to respond in a timely and appropriate manner to a report of bullying can have damaging effects on both the student, and the district. A student in Philadelphia was granted $500,000 due to the School District of Philadelphia not handing a report of bullying appropriately. The parent brought suit under the PA Human Relations Act, which is an anti-discrimination statutes. The school entities need to ensure that their employees understand bullying and reporting policies and understand what the appropriate steps are in reporting and handling bullying issues.

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Posted on June 18th, 2018
by Timothy E. Gilsbach

A recent case out of the Philadelphia Court of Common Pleas demonstrates just how costly the failure to respond to bullying can be.

In the case of Juanita J. W. v. School District of Philadelphia, the Court awarded a student who was the victim of bullying that was not properly addressed by the school district $500,000 for the significant injuries sustained by the student, plus attorney's fees and costs.

In , it was found that the student was taunted, bullied, and harassed while at three different schools in the district over the course of close to nine years.The student was called names, physically assaulted, subject to sexualized name calling, and was hit several times.

The student and her parent reported these incidents, many of which were related to the student's gender presentation, to school officials.However, while the school had a policy in place to address student bullying, it did not have a process to implement that policy and the district made little to no effort to remedy these issues.

As a result of the bullying, the student suffered panic attacks, physical harm, and psychological harm and the evidence showed that the student will likely continue to suffer from these conditions in the years to come.

The Parent brought suit under the Pennsylvania Human Relations Act, an anti-discrimination statute, and it appears this is the first time that a Pennsylvania Court has recognized a claim for student on student bullying and harassment under that statute.

The Court found that the district failed to properly respond to bullying of the student that was due to her gender presentation, and awarded damages.

Bottom Line for Schools

This case demonstrates the need for school districts to have policies in place to respond to student on student harassment, ensure there are mechanisms in place to implement those policies, and to make sure that such policies are implemented with fidelity.

In addition, school entities need to ensure that their employees understand such policies and know what to do when a parent or student reports bullying or harassment.Thecase outlines the emotional and physical cost to students and the financial costs to districts for failing to take such actions and for failing to respond to bullying.
If you have any questions, please contact your legal counsel or one of the education attorneys at KingSpry. This School Law Bullet is a publication of the KingSpry Education Law Practice Group. John E. Freund is our editor. It is meant to be informational and does not constitute legal advice.

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Failing to Respond to School Bullying Proves Costly | KingSpry

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Posted on June 18th, 2018 by Timothy E. Gilsbach In , it was found that the student was taunted, bullied, and harassed while at three different schools in the district over the course of close to nine years.The student was called names, physically assaulted, subject to sexualized name calling, and was hit several times.