The opinion of the court was delivered by: Joy Flowers Conti United States District Court Judge
Honorable Joy Flowers Conti
On August 25, 2009, the court held a hearing on the motion for temporary restraining order (Doc. No. 2) filed by plaintiffs Alexander Trefelner ("A.T."), Shirley Trefelner, and Joseph Trefelner (referred to collectively as "plaintiffs") and the response thereto (Doc. No. 9) of defendant Burrell School District ("Burrell" or "defendant"). Plaintiffs filed a complaint asserting claims against defendant under § 1983 for violating plaintiffs' rights under the First and Fourteenth Amendments. Plaintiffs seek a temporary restraining order to compel defendant to permit A.T. to participate in certain extracurricular activities offered by defendant. The court granted a temporary restraining order and advised that the reasons for the court's decision, which were detailed on the record, would be set forth in a written opinion.
With respect to extracurricular activities, Burrell adopted Policy No. 122, titled "Co-Curricular Activities," which provides in relevant part:
Participation in School Activities
A student must be enrolled in Burrell School District in order to participate in curricular, co-curricular or extracurricular activities. (Defendant's Br. in Opp. (Doc. No. 7), Ex. 3.) As interpreted by the school district, this policy means that a student must attend the full curricula of classes each day the student is to participate in an extracurricular activity offered by Burrell. Shannon Wagner, Burrell's superintendent, testified that "enrolled" means that "children that participate in extracurricular activities are to participate in Burrell School District full time, are enrolled [sic]." (TRO Hr'g Tr. 37.) Wagner stated that "[t]he board believes that if a child is not enrolled full time in Burrell School District, they are not to participate in the extracurricular activities." (Id. at 38.)
After the adoption of Burrell's Policy No. 122, Pennsylvania's Public School Code, 24 PA. CONS. STAT. § 1-101 et seq., was amended to permit students who are home schooled or, in certain situations, students who attend charter schools to participate in extracurricular activities offered by the school district in which they reside. The superintendent testified that "the law regarding home-schooled students and the law regarding cyber students supersedes our policy . . . ." (TRO Hr'g Tr. 38-39.) The superintendent was asked that by the court "[n]ow, was [Policy No. 122] adopted prior to the statutory changes for the cyber school and the charter schools?" The superintendent answered "[y]es." (Id. at 45.)
In relevant part, section 17-1719-A of the Pennsylvania Public School Code provides:
Notwithstanding any provision to the contrary, no school district of residence shall prohibit a student of a charter school from participating in any extracurricular activity of that school district of residence: Provided, That the student is able to fulfill all of the requirements of participation in such activity and the charter school does not provide the same extracurricular activity.
24 PA. CONS. STAT. § 17-1719-A(14) (enacted June 19, 1997). Section 13-1327.1 of Public School Code provides, in relevant part:
(1) Beginning January 1, 2006, the school district of residence shall permit a child who is enrolled in a home education program to participate in any activity that is subject to the provisions of section 511, including, but not limited to, clubs, musical ensembles, athletics and theatrical productions provided that the child:
(i) Meets the eligibility criteria or their equivalent for participation in the activity that apply to students enrolled in the school district;
(ii) Meets the tryout criteria or their equivalent for participation in the activity that apply to students enrolled in the school district; and
(iii) Complies with all policies, rules and regulations or their equivalent of the governing organization of the activity.
(4) A board of school directors may adopt a policy to implement the requirements of this subsection. Such policy shall only apply to participation in activities and shall not conflict with any provisions of this section.
24 PA. CONS. STAT. § 13-1327.1(f.1) (enacted November 10, 2005).
Despite the changes in the Public School Code, Policy No. 122 was not changed. The policy on its face conflicts with the Public School Code, to the extent that the code provides that home-schooled and, in certain situations, charter-schooled individuals must be permitted to participate in extracurricular activities. These individuals would not be full-time Burrell students or attend classes at Burrell schools for entire school days, and thus, under the policy as written, would not be permitted to participate. Burrell, however, will apply Policy No. 122 to be in accordance with the Public School Code. Burrell will permit individuals that reside within its district and are home schooled to participate in its extracurricular activities. Burrell similarly will permit individuals that reside within its district and attend charter schools to participate in its extracurricular activities, provided that the charter school does not offer the activity. The superintendent testified:
Q: Now, if [A.T.] were home-schooled, you would -- there would be no problem with him being in the marching band, correct?
A: Yes, because the law requires it.
Q: If he was home-schooled and he were [sic] being home-schooled in all of his classes, he would still be permitted to be in the marching band?
A: That's because that is what the law says.
Q: Whether concert band or jazz band, he would still be participating?
Q: That's the same if he attended a cyber school or charter school?
A: That is correct. (TRO Hr'g Tr. 29.) Burrell, however, continues to apply its policy to students who attend private schools that are not charter schools. (Id. at 39-40.) Such private schools include parochial schools.
With respect to the home school and charter school exceptions to the policy, the superintendent testified:
Q: . . . If a charter school student or a home-schooled student doesn't come in for the whole day, they are still permitted to participate in the marching band, correct?
A: They are required by law to keep a port folio that documents their attendance. They would be required by law, just like any other child, the parent would contact the school and say okay, they attended school these days out of the week and there's their academic progress.
Q: What would stop you from having [A.T.] document ["]I was at St. Joe's today and I'm now at class["] because this policy, am I not correct, is to make sure the kids go to school?
A: As long as they are fully enrolled in Burrell School District.
Q: Unless they are home-schooled, they would have the parents write a letter and say he went to class today?
A: That's a home-schooled child.
Q: A charter school, he looks at the computer all day or cyber?
A: The school official would report.
Q: What's to stop the principal of St. Joe's from sending over an email indicating [A.T.] was in school today?
A: Again, the board interprets it as something different. (TRO Hr'g Tr. 44-45.)
The superintendent testified that the purpose of Policy No. 122 is as follows:
THE COURT: And would you say for a student who is in cyber school or being home-schooled, their ability to participate in these curricular or extracurricular activities undercuts or undermines ...