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On the Pulse...Our School Leaders' Liability Practice Group

September 1, 2013

by Joseph J. Santarone, Jr., Esq.*

For many years, Marshall Dennehey has defended school districts, private and religious schools, charter schools, colleges and universities in pre-litigation, litigation, trial and appellate matters. As is our trademark, we pride ourselves on developing a relationship with a client that allows us to combine our legal skills with a thorough knowledge of the facts of the case. Our willingness to try cases to verdict, a fact well known to the plaintiff's bar, leads to much more favorable settlements in those cases that are resolved through either negotiations or some form of alternative dispute resolution.

Some of the areas that our School Leaders' Liability practice group handle regularly include:

  • Bullying litigation brought by both the alleged victims and those accused of being the harasser;
  • Education due process litigation under the federal statutes, IDEA and Section 504 of the Rehabilitation Act, including failure to provide FAPE, tuition reimbursement, compensatory education, and attorney's fees and the consequent federal court complaints and appeals;
  • Educator complaints (filed with the Pennsylvania Department of Education);
  • Educator due process issues, termination or other discipline based on performance;
  • Employee grievance/employer investigations;
  • Employment discrimination, harassment, hostile work environment, retaliation, equal opportunity and equal pay (all federal, state and local ordinances prohibiting discrimination/harassment of protected classes; this involves superintendent and board level decisions of a public entity);
  • Litigation arising from allegations of electronic surveillance, invasion of privacy and related claims that occur on and off public school premises;
  • Litigation arising from assault and battery claims between students on public school premises;
  • Litigation arising from casualty and property matters that occur on public and private school premises;
  • Litigation arising from claims of defamation, slander, libel, tortious interference, negligent and intentional infliction of emotional distress and similar intentional torts;
  • Litigation arising from electronic security data breaches that occur on public or private school premises;
  • Litigation arising from teacher-on-student/educator misconduct, including sexual misconduct, assault, battery and false imprisonment;
  • Litigation of public school student rights, including matters of free speech and locker searches;
  • Preparation, revision, counseling and/or defense of employer policies and procedures;
  • Student discipline matters that lead to complaints and litigation; and
  • Student-on-student harassment, discrimination, hostile environment and retaliation based upon a protected class status.

 

Our practice group recently had two very significant wins. The first was a dismissal in the Eastern District of Pennsylvania in the case of Reichert v. Garnet Valley School District. In that case, a 10-year-old special education student was sent to an approved private school, where he was repeatedly sexually assaulted by another student over a period of several months. The plaintiffs brought suit, and several settlement conferences were held. The plaintiffs' demand never came below $5 million. Among the critical allegations were that: (1) the student should not have been placed out of the public school district; (2) the placement was not proper due to the student's age; and (3) the transportation aides hired by the public school district to accompany the student back and forth to the private school ignored signs of abuse. Despite the plaintiffs' 50+ page expert report outlining how the actions of the school district "shocked the conscience," we were successful in having summary judgment granted.

In the second case, our client was awarded a precedential opinion on the subject of bullying. Morrow v. The Blackhawk School District was handed down by the United States Third Circuit Court of Appeals on June 5, 2013. The court held that the facts of the case, following extensive discovery, did not establish either a special relationship or a "state created danger," which must exist before a Constitutional duty to protect arises under the Fourteenth Amendment. Realizing the significance of the issues presented, the court decided to have the entire panel hear the case instead of the usual three judges. In the case, the plaintiffs were two sisters who attended Blackhawk High School in Beaver County, Pennsylvania. There were a series of threats and finally a physical attack that resulted in another student being charged with simple assault, terroristic threats and harassment. The harasser continued to bully the two female students despite the school's attempted intervention. The court sympathized with the plaintiffs, who were emotionally tormented by a fellow student who was an adjudicated delinquent. The court, adopting the brief and the arguments put forth by our firm, found that the plaintiffs did not state a basis for a Constitutional violation.

In fact, in the last few years, Marshall Dennehey has handled some 415 matters relating to school leaders' liability claims. Of those matters, we were able to obtain dismissals via motions in 48 percent of the cases.

We have grown proportionately with our public school clients in terms of the number of due process claims that have been filed over the last ten years. Our practice group has also handled interesting and novel First Amendment cases regarding claims filed on behalf of board members, teachers and students.

We have distinguished ourselves among our competitors. We handle cases from their pre-litigation inception, through agency filings, formal federal and state investigations and then, ultimately, through litigation in state and federal courts, through trial and through the appellate process. Our Appellate Advocacy & Post-Trial Motion practice group has provided sound counseling to our litigators on tough pre-trial issues that we have successfully preserved for appeal and/or won at trial and/or on appeal.

Whether the claim arises out of the alleged actions of a pre-school or a large university, our School Leaders' Liability practice group stands ready to defend. We look forward to assisting in the wide variety of state, federal and administrative claims that face educational institutions.

*Joe is a shareholder and chair of our School Leaders' Liability practice group. He works in our Philadelphia, Pennsylvania, office and can be reached at 215.575.2626 or jjsantarone@mdwcg.com.

Defense Digest, Vol. 19, No. 3, September 2013

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2013 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

Affiliated Attorney

Joseph J. Santarone Jr.
Chair, Public Entity & Civil Rights Practice Group
(215) 575-2626
jjsantarone@mdwcg.com

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