United States District Court, M.D. Pennsylvania
DAVID L. ARCHER, et al., Plaintiffs,
YORK CITY SCHOOL DISTRICT, et al., Defendants.
JOHN E. JONES, III J.
are students and parents of students formerly enrolled at New
Hope Academy Charter School (“New Hope”).
Defendants are the York City School District (“the
District” or “the City School”), five
members of the Board of Directors for the School District of
the City of York (“the Board”), and certain
administrative personnel presently and formerly employed by
the District (“the Administration Defendants”),
including Eric B. Holmes, the current Superintendent of the
District; Deborah Wortham, the former Superintendent; Mindy
Wantz, the District Secretary and Right to Know Officer; and
Valerie Perry-Cross, the former Assistant Superintendent for
Pupil and Personnel Services.
commenced this action, asserting various legal claims in
protest of the Board's decision not to renew New
Hope's charter. Presently pending before this Court is
Defendants' Motion for Summary Judgment. (Doc. 129). For
the reasons set forth below, we shall grant Defendants'
Motion for Summary Judgment in full.
York City School District
Hope was a charter school located in the city of York,
Pennsylvania, within the jurisdiction of the York City School
District. Children within the York City School District
suffer disproportionate financial disadvantage when compared
to the rest of York County, with about 81.3% of students
identified as economically disadvantaged by the Pennsylvania
System of School Assessment (“PSSA”). (Doc. 69,
¶ 66). Students within the District boundaries largely
do not meet state academic standards, and test scores have
fallen over time. (Id. ¶¶
67-69). From 2009 to 2011, 263 students dropped
out of York City schools. (Id. ¶ 70).
the City School in marked decline, more and more students
were choosing charter schools instead of public schools.
(Id. ¶ 72). In the 2012-13 academic year, there
were 7, 658 students enrolled within the District, with 62.7%
of those students attending York City schools and 31.8%
attending charter or nonpublic schools. (Id. ¶
65). According to Plaintiffs, the City School District has
recognized that continued tuition payments to charter schools
will cast the District into dire financial straits.
(Id. ¶ 73).
December 2012, the Commonwealth of Pennsylvania declared the
York City School District to be financially distressed.
(Id. ¶¶ 116, 118). Some District officials
publicly attributed the financial drain on the District to
charter schools. For instance, at ¶ 2011 school board
meeting, one official urged that the District must “go
to war” with charter schools, remarking that
“[w]e have to build our campaign [against] charter
schools.” (Id. ¶ 181). Also in 2011, the
then-president of the Board of School Directors expressed
that “one of the reasons why this budget is so out of
whack is the loss of our students [to charter
schools].” (Id. ¶ 180). Also, on November
14, 2013, a District representative commented that, “if
New Hope were to remain open indefinitely, it could adversely
affect the district's financial recovery plan . . .
.” (Id. ¶ 185 (emphasis omitted)).
December 12, 2012, Chief Recovery Officer David G. Meckley
was appointed to develop a Financial Recovery Plan for the
District. (Id. ¶¶ 117-18). Meckley issued
his report on May 15, 2013, revealing that in 2011-2012, the
District's tuition payments to charter schools totaled
$24.8 million. (Id. ¶¶ 119, 122). In
2012-2013, 25.1% of the District's budget was allocated
for charter school educational costs. (Id. ¶
123). Meckley's report concluded that the District must
reduce or reverse payments to charter schools to avoid
financial ruin, estimating that, if the District continued on
the same course, it would have an annual $17 million deficit
and debt exceeding $55 million by 2018. (Id.
Hope Academy Charter School
Hope's charter was first approved on March 12, 2007, with
an effective date of July 1, 2007. (Id. ¶
The charter provided that for its “measurable academic
goals and objectives, ” New Hope was to strive to
ensure that “[t]he student will meet the proficient
level in language arts and mathematics.” New Hope
Acad. Charter Sch. v. Sch. Dist. of the City of York, 89
A.2d 731, 733 (Pa. Commw.Ct. 2014) (citing New Hope Charter
and Charter Application at 15). “New Hope's charter
also provided that achievement of its goals and objectives
would be measured by the Pennsylvania System of School
Assessment (PSSA), stating that ‘scores from PSSA will
be used to measure the student progress in regards to the
State Standards.'” Id.
Hope began by serving grades 7 and 8. By the time of its
dissolution in June 2014, New Hope had incrementally expanded
to serve grades 5 through 12 and enrolled approximately 800
students. (Doc. 69, ¶¶ 77, 81, 89). Throughout New
Hope's growth, marked by various successful applications
to amend its charter to add new grade levels and programming,
the District never expressed any concerns to New Hope
regarding New Hope's administration or academics.
(Id. ¶¶ 84, 86, 88, 90, 92). In fact,
during a site visit on May 22, 2012, then-Pennsylvania
Secretary of Education Carolyn Dumaresq praised New Hope for
its exceptional facilities and stewardship of public monies.
(Id. ¶¶ 93-95). Defendants emphasize,
however, that in approving the amendments to New Hope's
charter, the District “did not conduct a comprehensive
review of New Hope's operations.” (Doc. 130, ¶
Plaintiffs' view, charter schools have provided hope to
parents whose children previously have had to attend the
failing City School and who cannot afford to relocate or send
their children to private school. (Doc. 69, ¶¶
139-41). For example, Plaintiffs submit that New Hope's
graduation rate for 12th grade students was consistently at
or above 91%, compared to the City School's graduation
rate of 74%. (Id. ¶¶ 99, 142). A number of
New Hope seniors were granted full scholarships at state
universities based on their class rank, and New Hope
graduates were awarded over $1 million annually in merit
scholarships. (Id. ¶¶ 144-45). Plaintiffs
also feel that New Hope was safer than the City Schools.
(Id. ¶ 146).
generally disagree with this characterization of New Hope.
They stress that New Hope's students' “PSSA
scores” were “generally lower” than
the scores of students who attended the District's
schools. (Doc. 130, ¶ 40). New Hope also failed to
achieve Adequate Yearly Progress (“AYP”) during
any of the academic years that New Hope operated. AYP
represents a measurement of student progress established by
the No Child Left Behind Act of 2002. (Doc. 130, ¶ 46).
It measures schools by the scores their students achieve on
the PSSA but also provides “safe harbor and growth
methods based on reductions in the percentage of
non-proficient students and improvements on scores toward
proficiency.” New Hope, 89 A.2d at 734. Unlike
New Hope, some District schools have sporadically achieved
AYP at different times throughout their operation. However,
Plaintiffs stress that not a single school within the York
City School District has ever met the AYP minimum performance
standards. (Doc. 134, ¶¶ 44-46).
2011, New Hope hired an education consultant, Dr. Michael
Clemens. New Hope, 89 A.2d at 734. Dr. Clemens was
retained to help New Hope improve its academic performance.
Id. He concluded that New Hope “was weak in
the areas of ‘curriculum, instruction, and assessments
aligned with state standards, ' ‘the frequent
monitoring of learning and teaching, ' ‘and
‘focused professional development.'”
Id. (quoting Board Opinion at 29; School Board C.R.
February 29, 2012 H.T. at 86-87, R.R. at 298a-299a).
Ultimately, Dr. Clemens determined that New Hope's
curriculum was “not aligned with Pennsylvania state
academic standards as required by 22Pa. Code Chapter
4.” Id.; (doc. 130-29, p. 5).
Nonrenewal and the Administrative and Judicial Process
2011, New Hope applied for the renewal of its charter. (Doc.
130, ¶ 37; doc 134, ¶ 37). On January 30, 2012, the
New Hope Board of Trustees received notice that the
school's request to renew its charter had been denied and
that nonrenewal proceedings would commence. (Doc. 69, ¶
97; Doc. 73-1, p. 1). The notice included a list of
“Preliminary Reasons For Non-Renewal of Charter”
which Plaintiffs characterize as “vague and ambiguous,
” stating that it did not provide the details necessary
for Plaintiffs to participate in the District's
adjudication. (Doc. 134, ¶ 51; doc. 69, ¶
160). According to Defendant School Board President Margie
Orr, the Administration initiated the nonrenewal process and
not the Board. (Doc. 69, ¶ 151)
Plaintiffs' belief that prior to sending the
notification, individual Defendants had already determined
not to renew New Hope's charter, and, as such, the
non-renewal proceedings that followed were a sham.
(Id. ¶ 100). Plaintiffs centrally highlight
that, prior to the initiation of nonrenewal proceedings,
then-Superintendent Wortham directed that the administration
form a committee to create a “Checklist of Possible
Reasons for Charter Denial” to effectuate the closure
of New Hope. (Id. ¶ 105). Defendants agree that
Superintendent Wortham requested that members of the
Administration conduct a “second review” of New
Hope's renewal application. (Doc. 130, ¶ 48). Former
Assistant Superintendent Perry-Cross chaired the committee.
(Id. ¶ 49; doc. 69, ¶ 106). Defendant
Miller, a School Board member, attended the meetings but
never disclosed his participation. (Doc. 69, ¶ 109).
January 9, 2012, Perry-Cross sent an email with the subject
“Checklist of Possible Reasons for Charter
Denial.” (Doc. 69, ¶ 111). The committee met
secretly, did not publicize its findings, and never provided
New Hope with its checklist. (Id. ¶¶
107-08, 112). Defendants, however, argue that the meeting was
not “secret”-rather Defendants were under no
obligation to inform New Hope of the Administration's
meetings or their purpose. (Doc. 135, p. 8). Only meetings of
the Board and those conducted pursuant to New Hope's
non-renewal hearings and proceedings are subject to the
Sunshine Act. (Id.).
asserted in their Complaint, Plaintiffs allege that the
District, including the Board and administration, retained
Levin Legal Group for the purpose of forming a committee to
shut New Hope down. (Doc. 69, ¶ 130). To this end,
Plaintiffs allege Attorney Allison Petersen met in private
with the Board and administration, advising that they must
carry out nonrenewal proceedings as a formality.
(Id. ¶ 133). Defendants entirely disagree with
Plaintiffs' characterization of events, and instead
allege that the Levin Legal Group was hired to assist the
District with charter school issues generally, including the
evaluation of several applications for the creation and
establishment of new charter schools. Defendants aver that
Attorney Petersen advised the Board that she could not
discuss the New Hope nonrenewal proceedings with them until
after they voted on the matter. (Doc. 130, ¶¶
February 16, 2012, the District issued an Amended Nonrenewal
Notice with the following charges: violation of the
school's charter because of failure of students to meet
minimum proficiency in reading and mathematics; violation of
the school's charter by accepting students beyond the
first 10 days of each quarter; failure to meet the
requirements for student performance as set forth in the
Pennsylvania Administrative Code; violation of No Child Left
Behind by failing to make annual yearly progress, or AYP;
noncompliance with attendance reporting requirements;
violation of Pennsylvania law or administrative guidance
related to placement of students at alternative education
facilities, specifically Challenge Academy; and violations of
the Pennsylvania Non-Profit Corporation Act and the Public
Official and Employee Ethics Act with respect to the role and
actions of Isiah Anderson, the school's founder, as
related to the for-profit entities owned or controlled by
him, including Challenge Academy. (Doc. 73-1, pp. 1-3).
express that many of the stated allegations existed at the
time the District granted amendments to New Hope's
charter but were never raised; that none of the concerns have
any substantive merit; and that all of the allegations were
contrived as a predetermined excuse to dissolve New
Hope's charter. (Doc. 69, ¶¶ 172-74).
the issuance of the Amended Nonrenewal Notice, nonrenewal
proceedings were held over seven evenings in February and
March 2012. (Doc. 130, ¶ 55; doc. 134, ¶ 55). At
the school board meeting of July 18, 2012, the Board resolved
not to renew New Hope's charter by a vote of 5-0. (Doc.
73-1, p. 5). The Board issued a 77-page Adjudication on
August 15, 2012, including findings of fact and conclusions
of law, in support of its decision. (Id. at pp.
Hope appealed the Board's decision, and, on October 29,
2013, the Pennsylvania State Charter School Appeal Board
(“CAB”) issued a 51-page Opinion finding that the
nonrenewal of New Hope's charter was proper. (Doc. 73-2).
The accompanying Order specified that the decision upholding
nonrenewal would become effective on January 15, 2014, to
allow New Hope students to complete the fall term of the
2013-2014 academic year. (Id. at p. 52). In the
Opinion, the CAB specifically determined that New Hope had
received adequate notice of the grounds for nonrenewal.
(Id. at pp. 20-22). It explained that the
Pennsylvania Charter School Law requires that a charter
school be apprised of the reasons for nonrenewal “with
reasonable specificity, ” 24 P.S. § 17-1729-A(c),
and, here, determined that the grounds stated in the Amended
Nonrenewal Notice complied with that directive. (Doc. 73-2,
p. 20). The CAB further expressed that “[i]t is clear
from the record that New Hope received both adequate notice
of the grounds on which the School Board based its decision
and the opportunity to present witnesses and evidence on each
of those issues” and found that “New Hope's
due process rights were not violated.” (Id. at
terms of the substantive grounds underlying the nonrenewal
decision, the CAB found, among other things, that New Hope:
(1) failed to meet student performance requirements set forth
in the Pennsylvania Administrative Code and the school's
written charter; (2) materially violated the terms of its
charter by failing to meet academic standards and neglecting
to follow admission/enrollment policies provided therein; (3)
violated laws governing enrollment procedures, the placement
of students in Alternative Education for Disruptive Youth
(“AEDY”) programs, and truancy and student
attendance reporting; and (4) along with its related
entities/officials, contravened the Ethics Act by failing to
file Statements of Financial Interest and engaging in conduct
which constituted a conflict of interest. (Id. at
pp. 14-16; 25-51).
New Hope filed an Application for Stay, and the CAB issued an
order on November 21, 2013, granting a stay until June 4,
2014, which allowed New Hope students to complete the 2013-14
academic year. (Doc. 73-3). On November 26, 2013, New Hope
filed a Petition for Review of the CAB's decision in the
Pennsylvania Commonwealth Court. The Commonwealth Court
issued a decision on the merits on April 8, 2014, affirming
the CAB's ruling. See New Hope Acad. Charter Sch. v.
Sch. Dist. of City of York, 89 A.3d 731 (Pa. Commw. Ct.
Hope was forced to dissolve in June 2014.
filed a Complaint on November 19, 2013 (Doc. 1), centrally
contending that the rationales asserted by the Board for the
nonrenewal of New Hope's charter were pretextual and that
finances were the true motivator for the school's
closure. (Id. ¶¶ 74-75). Plaintiffs
advanced claims based on the Procedural Due Process,
Substantive Due Process, and Equal Protection Clauses of the
Fourteenth Amendment; conspiracy; the Due Process Clause of
the Pennsylvania Constitution; and Article I § 26 of the
filed a Motion to Dismiss (Doc. 17), and we issued a
Memorandum and Order on February 27, 2014, granting the
motion. (Doc. 27). We dismissed with prejudice
Plaintiffs' federal and state law claims based on
procedural and substantive due process, because Plaintiffs
failed to allege a deprivation of a protected interest.
(Id. pp. 19-21, 32-33). However, we permitted
Plaintiffs to amend their pleading to reassert their equal
protection and conspiracy claims. (Id. at p. 35).
filed an amended complaint on March 19, 2014 (Doc. 31), and
Defendants against moved to dismiss the pleading. (Doc. 35).
The parties fully briefed the motion, but before a decision
could be rendered, Plaintiffs filed a Motion for Leave to
File a Second Amended Complaint on June 2, 2014, including a
proposed amended pleading. (Docs. 43, 43-4). The appended
proposed pleading added, among other things, new defendants
(the Administration Defendants) and a new legal claim
(fraud). We granted leave to amend on September 10, 2014
(Doc. 67), but ordered Plaintiffs to revise their proposed
amended pleading before submitting it. We noted that the
amended complaint, as drafted, spanned 430 numbered
paragraphs and 84 pages, and we directed Plaintiffs to
“pare down their pleading to encompass a ‘short
and plain statement' showing their entitlement to
relief.” (Id. at p. 9 (quoting Fed.R.Civ.P.
making revisions, Plaintiffs filed the operative Second
Amended Complaint on October 14, 2014. (Doc. 69). Relevantly,
the amended pleading added the four Administration Defendants
and a claim for fraud (Count IV), as well as new and expanded
factual allegations. Plaintiffs also reasserted their claims
under the Equal Protection Clause of the Fourteenth Amendment
(Count I); for conspiracy in violation of 42 U.S.C. §
1983 (Count II); and pursuant to Article I § 26 of the
Pennsylvania Constitution (Count III).
filed another Motion to Dismiss on October 28, 2014. (Doc.
73). In the course of briefing, the parties agreed to the
dismissal of Plaintiffs' fraud claim. We ruled on the
remainder of the pending issues, denying Defendants'
Motion with regard to Plaintiffs' equal protection claim,
conspiracy claim, and Pennsylvania constitutional claim.
(Doc. 85). We also declined to dismiss the new Defendants
added pursuant to Plaintiffs' operative Second Amended
Complaint. We granted Defendants' Motion insofar as it
related to Plaintiffs' request for compensatory damages
under the Pennsylvania Constitution and punitive damages
against Defendants in their official capacities.
March 18, 2015, Defendants filed an Answer to Plaintiffs'
Second Amended Complaint. (Doc. 90). Several discovery
disputes subsequently ensued and were summarily resolved, and
the Court twice granted Defendants' Motions for Sanctions
to dismiss nonresponsive Plaintiffs from the case. (Docs. 96,