ROHEILA v. MCKEESPORT AREA SCHOOL DISTRICT

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JERRELL ROHEILA, et al,

Plaintiffs, Civil Action No. 2:22-cv-1230

Vv. Hon. William S. Stickman IV

Hon. Cynthia Reed Eddy

MCKEESPORT AREA SCHOOL

DISTRICT, et al,

Defendants.

MEMORANDUM OPINION

WILLIAM S. STICKMAN IV, United States District Judge

Plaintiffs brought this action after Defendant school districts cut busing to charter school

students as a result of a nationwide school bus driver shortage. They filed a Motion for Entry of

a Temporary Restraining Order and Preliminary Injunction (ECF No. 13) asking the Court to

mandate that Defendant school districts reinstate busing to Plaintiff students. After carefully —

reviewing the record adduced by the parties and considering their arguments, the Court is

compelled to deny the requested temporary restraining order and preliminary injunction.

I. FACTUAL AND PROCEDURAL BACKGROUND

Individual Plaintiff Jerrell Roheila is the parent of J.W., who resides in McKeesport Area

School District and attends Propel Charter School-McKeesport. (ECF No. 1, ff 6, 7). Individual

Plaintiff Rodney White is the parent of N.W. and N.W., who both reside in Woodland Hills School

District and attend Propel Charter School-Pitcairn. Ud. JJ 8, 9). Plaintiffs Propel Charter Schools

(“Propel”) is a nonprofit corporation operating thirteen different charter schools from kindergarten

through twelfth grade. (ECF No. 23, p. 82). Plaintiff Young Scholars of Greater Allegheny

Charter School (“YSGA”) is a nonprofit corporation operating a kindergarten through fifth grade

charter school. (ECF No. 1, □ 19).

Propel has students from thirty-six different school districts, two of which are Defendant

McKeesport Area School District “(MASD”) and Defendant Woodland Hills School District

(“WHSD”). (ECF No. 23, p. 82). YSGA also has students living in MASD and WHSD. (See id.

at 111, 126). Prior to the 2022-2023 academic year, WHSD and MASD provided transportation

for Propel and YSGA students living within the district, as required by Pennsylvania law. (ECF

No. 1, 931); see 24 Pa. Stat. Ann. § 17-1726-A. All Propel Charter Schools began the 2022-2023

school year on Wednesday, August 17, 2022, and for the first four days of Propel’s school year,

Propel students were bused by MASD and WHSD as they had been in previous years. (ECF No.

1, 37, 47). As the start of MASD’s school year approached, it became clear that MASD’s sole

transportation contractor, Krise Transportation (“Krise”), did not have enough drivers to satisfy

the transportation needs of all students in the district. (See ECF No. 22, Exhibit 6).

On May 25, 2022, the MASD School Board approved a proposal from Krise to provide

student transportation from June 2, 2022, through June 30, 2029. (ECF No. 22, Exhibit 5). MASD

Superintendent Dr. Tia Wanzo testified that she was in contact with Krise about driver shortages

beginning shortly after the Krise proposal was approved. (ECF No. 23, p. 139). Propel was first

informed of MASD’s potential transportation issues on Friday, August 19, 2022, when the

Supervisor of School Services for MASD, Thomas Knight (“Knight”), sent an email to Propel’s

Assistant Director of Student Affairs, Darren Stromock (“Stromock’”), to notify him of “a strong

possibility due to the driver shortage that we won’t be able to run transportation to the Propel

schools after Monday.” (ECF No. 22, Exhibit 6). This was followed by another email on August

22, 2022, in which Knight notified Stromock that MASD was “currently unable to transport

students to your schools.” (ECF No. 22, Exhibit 7). .

On Tuesday, August 23, 2022 - the day MASD began its 2022-2023 school year ~ MASD

stopped providing transportation to Propel students. (ECF No. 1, 41, 42). As of September 1,

2022, MASD was providing transportation for all of its own students, but according to testimony

from Dr. Tina Chekan (“Chekan”), Superintendent for Propel Schools, 187 of Propel’s 298

students from McKeesport were without transportation. (ECF No. 23, pp. 15-16, 82-83). MASD

represents that on September 12, 2022, MASD began “providing full transportation services to all

students of Propel Charter School-McKeesport[.]” (ECF No. 28, p. 2). However, according to

Plaintiffs, these buses arrive an hour after school begins and are similarly delayed transporting

students home. (ECF No. 29, p. 18, n.11). MASD has also “made arrangements” to provide bus

or van transportation to Propel-Pitcairn, Propel-Sunrise, Propel Hazelwood, and Propel-East

beginning on September 14, 2022. (ECF No. 28, p. 2).

At the time of filing, MASD had not transported any YSGA students since YSGA’s school

year began on August 29, 2022. (ECF No. 23, p. 111). YSGA has 173 students living in MASD,

145 of whom rely on transportation from the District. (Jd.). After receiving calls from concerned

parents, Kelli Humphries (“Humphries”), YSGA’s Director of Discipline and Student Services,

contacted Knight on August 22, 2022, and was informed that MASD would not be able to transport

YSGA students. (Ud. at 111-12). Prior to that call, MASD had not notified YSGA about any

potential transportation problems. (/d.) In a meeting on August 31, 2022, Humphries was

informed by Knight that MASD would provide bus passes for any families who were interested.

(Id. at 115). Knight also informed Humphries that he would investigate the possibility of MASD

providing mileage reimbursements for families providing their own transportation. (/d. at 116).

MASD represents that on September 12, 2022, it began busing all YSGA students within the

district. (ECF No. 28, p. 2). However, according to Plaintiffs, these buses are late transporting

YSGA students home. (ECF No. 29, p. 18, n.11).

Like MASD, WHSD transported its Propel students for the first four days of Propel’s

school year. (ECF No. 1, § 47). WHSD’s transportation contractors did not have enough drivers

to meet the district’s transportation requirements once WHSD began its school year on

Wednesday, August 24, 2022. (ECF No. 1, 945; ECF No. 22, Exhibit 10). On June 24, 2022, the

WHSD School Board approved an agreement with Krise to provide student transportation from

July 1, 2022, through June 30, 2029. (ECF No. 22, Exhibit 9). The contract between WHSD and

Krise specifically includes the transportation of charter students and was intended to supplement

WHSD’s existing transportation contract with First Student, which was expected to provide 70%

of student transportation, with Krise providing the remaining 30%. (ECF No. 23, pp. 56-57; ECF

No. 22, Exhibit 9). Of the ten drivers WHSD expected Krise to provide for the start of school,

Krise only provided two. (ECF No. 23, p. 57). As a result, WHSD cancelled eight bus routes

district wide, seven of which were Propel routes. (/d.).

On August 23, 2022, WHSD Transportation Supervisor Stephanie Garrity sent an email

notifying Propel that WHSD “will not have school bus transportation for your school at this time.”

(ECF No. 22, Exhibit 10). Specifically, the email listed Propel East Route 440; Propel Hazelwood

Route 213; Propel Braddock Hills Routes 701, 702, 703, 704; and Propel Pitcairn Route 705 as

“cancelled until further notice due to driver shortage.” (/d.). The email explained that WHSD was

waiting for new driver applicants to become CDL licensed and offered “all students Port Authority

bus tickets or parent reimbursement until we have the yellow bus available.” (d.).

WHSD began its school year on Wednesday, August 24, 2022, and, as of September 1,

2022, the District was busing all Woodland Hills students. (ECF No. 1, 945; ECF No. 23, p. 22).

As of the same date, WHSD was not providing two buses (out of three) to Propel-East' and was

providing no busing to Propel-Hazelwood, Propel-Braddock, and Propel-Pitcairn.* (ECF No. 23,

p. 20). According to Dr. Chekan’s testimony, 375 of Propel’s 717 students from Woodland Hills

were without transportation.? (/d. at 83). Currently, YSGA students within WHSD are being fully

transported. (/d. at 10).

Plaintiffs filed the Complaint in this action on August 25, 2022, raising the following

causes of action:

- Count I: Violation of Fourteenth Amendment — Right to Due Process;

- Count II: Violation of Fourteenth Amendment — Equal Protection;

- Count III: Violation of Pa. Const. Art. L, § 1 — Right to Due Process;

- Count IV: Violation of Pa. Const. Art. L, § 26 — Equal Protection;

- Count V: Violation of Pa. Const. Art. 3, § 14— Right to a Free Public Education;

- Count VI: Violation of Pennsylvania Public School Code.

(ECF No. 1, §§ 63-111). On August 29, 2022, Plaintiffs filed a Motion for Entry of a Temporary

Restraining Order and Preliminary Injunction. (ECF No. 13). Plaintiffs seek an order enjoining

MASD and WHSD “from unlawfully depriving K-12 students residing within ten (10) miles of

the boundaries of their appropriate School District from bus transportation to and from Propel

Charter School-Homestead, Propel Charter School-McKeesport, Propel Charter School-East,

' “As of the time of this filing on September 15, 2022 Woodland Hills expects to be able to bus

for Propel East Route 440 on Monday, September 19, 2022[.]” CECF No. 30, pp. 2-3).

* WHSD “expects to be able to provide a bus for Propel Charter School-Pitcairn on Monday

September 26, 2022.” (ECF No. 30, p. 3).

3 According to Plaintiffs, “[s]ince the hearing, Propel Schools has received notice that additional

Propel routes in the WHSD have been terminated, effective the week of September 12, 2022.”

(ECF No. 29, p. 18, n.11).

Propel Charter School-Hazelwood, Propel Charter School-Sunrise d/b/a Propel Braddock Hills,

Propel Charter School-Pitcairn, and Young Scholars of Greater Allegheny Charter School[.]”

(ECF No. 10, p. 2). The Court scheduled a hearing on the request for preliminary injunctive relief

for September 1, 2022. (ECF No. 14). Following oral argument, the parties submitted

supplemental briefing with respect to a number of factual and legal issues critical to the Court’s

determination of the request for preliminary injunctive relief.

Il. STANDARD OF REVIEW

The grant or denial of a preliminary injunction is within the sound discretion of a district

court. See Reilly v. City of Harrisburg, 858 F.3d 173, 178~79 (3d Cir. 2017) (“District courts have

the freedom to fashion preliminary equitable relief so long as they do so by ‘exercising their sound

discretion.’” (citation omitted)). The primary purpose of preliminary injunctive relief is

“maintenance of the status quo until a decision on the merits of a case is rendered.” Acierno v.

New Castle County, 40 F.3d 645, 647 (3d Cir. 1994). The “status quo” refers to “the last,

peaceable, noncontested status of the parties.” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700,

708 (3d Cir. 2004).

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter

v. NRDC, Inc., 555 U.S. 7, 24 (2008). Rather, such relief “should be granted only in limited

circumstances.” Kos Pharms., 369 F.3d at 708 (citation omitted). A moving party “must establish

entitlement to relief by clear evidence.” Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 526 3d

Cir. 2018). Specifically, the movant must demonstrate:

(1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if

the injunction is denied; (3) that granting preliminary relief will not result in even

greater harm to the nonmoving party; and (4) that the public interest favors such

relief.

Kos Pharms., 369 F.3d at 708; see also Winter, 555 U.S. at 20. The first two factors are “the most

critical,” and the moving party bears the burden of making the requisite showings. Reilly, 858

F.3d at 176, 179 (citations omitted). Once those “gateway factors” are met, a court should

“consider[] the remaining two factors” and then “determine[] in its sound discretion if all four

factors, taken together, balance in favor of granting the requested preliminary relief.” Jd. at 179.

In reaching its decision on a request for injunctive relief, a district court sits as both the

trier of fact and the arbiter of legal disputes. A court must, therefore, make “findings of fact and

conclusions of law upon the granting or refusing of a preliminary injunction.” Bradley v.

Pittsburgh Bd. of Educ., 910 F.2d 1172, 1178 (3d Cir. 1990) (citing Fed. R. Civ. P. 52(a)(2)). This

“mandatory” requirement of Rule 52(a)(2) must be met “even when there has been no evidentiary

hearing on the motion.” Jd. Nevertheless, at the preliminary injunction stage, “procedures [] are

less formal and evidence [] is less complete than in a trial on the merits.” Kos Pharms., 369 F.3d

at 718; see also AT&T Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 Gd Cir.

1994) (“[T]he grant or denial of a preliminary injunction is almost always based on an abbreviated

set of facts, requiring a delicate balancing [that] is the responsibility of the district judge.” (citations

omitted)). Accordingly, a court “may rely on affidavits and hearsay materials which would not be

admissible evidence.” Kos Pharms., 369 F.3d at 718 (quoting in parenthetical Levi Strauss & Co.

vy. Sunrise Int'l Trading, Inc., 51 F.3d 982, 985 (11th Cir. 1995)). But the weight given to such

materials will “vary greatly depending on the facts and circumstances of a given case.” Jd. at 719.

A coutt is also tasked with assessing the credibility of witness testimony and may base the decision

to grant or deny a preliminary injunction on credibility determinations. See, e.g., Hudson Glob.

Res. Holdings, Inc. y. Hill, 2007 WL 1545678, at *8 (W.D. Pa. May 25, 2007).

HI. ANALYSIS

A. Plaintiffs’ Motion for a Preliminary Injunction will be denied because they have not

established that they are reasonably likely to succeed on the merits of their claims

based on existing Pennsylvania law.

1. Threshold Standing Issues.

A threshold consideration in every federal case is whether the plaintiff has standing under

Article II of the United States Constitution. The parties vigorously dispute this point on two

primary grounds. First, Defendants argue that developments in the transportation situation since

the filing of this action have rendered some of Plaintiffs’ claims moot—eliminating the case and

controversy as to those Plaintiffs. Second, Defendants argue that School Plaintiffs do not have

standing to pursue their claims because they—like traditional public schools—are creations of the

State akin to municipalities and cannot, therefore, assert constitutional claims.

a) The Court declines to examine claims raised by Plaintiffs for whom

transportation has been restored.

The record adduced at the hearing and representations made by counsel in their

supplemental briefs* demonstrates that transportation service has been restored to several

Plaintiffs. The following table reflects the current status of transportation for each of the named

Plaintiffs:

Parties Woodland Hills School McKeesport Area School District

District

Jerell Roheila Not Applicable Resolved as of 9/12/2022 when transportation

(parent of Propel- began at Propel-McKeesport. (ECF No. 28, p. 2).

McKeesport Plaintiffs note that the transportation that began on

student) 9/12 to Propel-McKeesport is an hour late dropping

kids off and returning them home. (ECF No. 29, p.

18, n.11).

4 The Court will, for the purpose of its disposition of the issues at bar, credit the representations

made in the parties’ supplemental briefing. Those representations were made by counsel as

officers of the Court and subject to the provisions of Rule 11. They reflect ongoing and fluid

developments that have occurred since the hearing.

Rodney White X — Not receiving transportation | Not Applicable

(Parent of Propel- services for children attending

Pitcairn students) Propel-Pitcairn.

Propel Charter Full transportation services. (ECF | X — No Transportation. Anticipates transportation

School-Homestead | No. 30, p. 2). within a week. (ECF No. 28, p. 2).

Propel Charter Full transportation services. (ECF | Full transportation services as of 9/12/2022. (ECF

School-McKeesport | No. 30, p. 2). No. 28, p. 2). Plaintiffs note that the transportation

that began on 9/12 to Propel-McKeesport is an hour

late dropping kids off and returning them home.

ECF No. 29, p. 18, n.11).

Propel Charter Full transportation services. (ECF | Full transportation services as of 9/14/2022. (ECF

School-Sunrise No. 30, p. 2). No. 28, p. 2).

Propel Charter X — No Transportation. Expects to | Full transportation services as of 9/14/2022. (ECF

School-Pitcairn provide a bus by 9/26/2022. (ECF | No. 28, p. 2).

No. 30, pp. 2-3).

Propel-Charter X — No Transportation. Full transportation services as of 9/14/2022. (ECF

School-Hazelwood No. 28, p. 2).

Propel Charter X — Providing one bus (out of three). | Full transportation services as of 9/14/2022. (ECF

School-East (ECF No. 23, pp. 19-20). Expects to | No. 28, p. 2).

be able to bus for Route 440

beginning on 9/19/2022. (ECF No.

30, pp. 2-3).

Young Scholars of | Full transportation services. (ECF | Full transportation services as of 9/12/2022. (ECF

Greater Allegheny | No. 23, pp. 19-20). No. 28, p. 2). Plaintiffs note that the transportation

that began on 9/12 to YSGA is arriving late to

transport students home. (ECF No. 29, p. 18, n.11).

Article III of the Constitution provides that federal courts may only exercise jurisdiction

over “Cases” and “Controversies.” U.S. Const. Art. III, § 2. The doctrine of standing is “an

essential and unchanging part of the case-or-controversy requirement of Article HI.” Lujan v.

Defs. of Wildlife, 504 U.S. 555, 559 (1992). As the “part[ies] invoking federal jurisdiction,”

Plaintiffs bear the burden of establishing standing. Spokeo, Inc. v. Robins, 578 U.S. 330, 338

(2016). Plaintiffs must show that they have “(1) suffered an injury in fact, (2) that is fairly traceable

to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable

judicial decision.” Jd. (citing Lujan, 504 U.S. at 560-61). “To establish injury in fact, a plaintiff

must show that he or she suffered ‘an invasion of a legally protected interest’ that is “concrete and

particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Jd at 339 (quoting

Lujan, 504 U.S. at 560). Here, the Court holds that only those Plaintiffs who have not had

transportation restored currently have Article III standing. At this point, only those Plaintiffs have

an injury that is “concrete and particularized” and “actual or imminent, not conjectural or

hypothetical.”

Plaintiffs contend that the restoration of busing to certain Plaintiffs does not moot their

claims because future disruptions could occur. This is mere speculation relating to the possibility

of future disruption. Speculation as to future injury will not, as a general matter, confer Article ITI

standing.

Nor does this case fall under the voluntary cessation doctrine. The voluntary cessation

doctrine can serve as an exception to mootness “when the defendant argues mootness because of

some action it took unilaterally after the litigation began.” Hartnett v. Pa. State Educ. Ass’n, 963

F.3d 301, 306 (3d Cir. 2020). See also Friends of the Earth, Inc. v. Laidlaw Environmental

Services (TOC) Inc., 528 U.S. 167, 189 (2000) (“It is well settled that a defendant's voluntary

cessation of a challenged practice does not deprive a federal court of its power to determine the

legality of the practice.”). “Voluntary cessation of challenged activity will moot a case only if it

is ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to

recur.’” Fields v. Speaker of Pennsylvania House of Representatives, 936 F.3d 142, 161 (3d Cir.

2019) (quoting Parents Involved in Cmty. Sch. y. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719

(2007)).

In this case, there is nothing in the record to support a finding that Defendants merely

suspended the implementation of a policy in order to moot this litigation. Rather, the hearing

record, and subsequent developments, suggest that Defendants have been doing exactly what they

testified was their plan and policy—to reinstate transportation service as additional drivers and

other logistical considerations permit. They have not suspended the implementation of a prior

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policy; they have only rectified the situation. In other words, they have restored the status quo as

it existed at the beginning of the school year. This is not the type of case that falls within the

narrow exception to the mootness doctrine represented by the voluntary cessation doctrine.

Because only Rodney White (parent of Propel-Pitcairn students), Propel-Homestead,

Propel-Pitcairn, Propel-Hazelwood, and Propel-East are currently without service, the Court will

address only their claims. The other Plaintiffs’ claims are moot.°

b) The remaining Individual Plaintiff, Rodney White, has standing.

Individual Plaintiff, Rodney White has Article III standing to bring claims against WHSD.

White alleges that WHSD’s failure to provide his children with transportation to Propel-Pitcairn

deprived him of a legally protected property interest under state and federal law. These allegations

sufficiently establish an “injury in fact” for purposes of Article II standing. White’s injury in fact

is “fairly traceable” to WHSD’s challenged conduct — its failure to provide transportation to

Propel-Pitcairn. White seeks, in part, an order to prohibit WHSD from eliminating all

transportation to Propel-Pitcairn. Thus, White’s injury is likely to be redressed by a judicial

decision in his favor.

c) The remaining School Plaintiffs have standing, with the sole exception of

Propel Charter School East.

Under Pennsylvania’s Charter School Law, a charter school is an “independent public school

established and operated under a charter from the local board of school directors and in which

students are enrolled or attend.” 24 Pa. Stat. Ann. § 17-1703—A. Charter schools “operate[] with

Plaintiffs assert that, for some routes which have been reinstated, the buses do not deliver students

to their respective schools until significantly after the beginning of the school day. This does not

prevent the finding of mootness. The question of whether late transportation will satisfy the

Pennsylvania statutory requirement (or how late transportation can be before a deprivation is

found) is a question best left for Pennsylvania courts.

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the authorization of a local school district for the limited purpose of providing an alternate

education option to students within the public education system.” Pocono Mountain Charter Sch.

vy. Pocono Mountain Sch. Dist., 908 F. Supp. 2d 597, 612 (M.D. Pa. 2012) (citing Foreman v.

Chester—Upland Sch. Dist., 941 A.2d 108, 115 (Pa. Cmwith. 2008)). “This relationship is

analogous to that of a municipal corporation-creator where the powers granted to the municipal

corporation are defined and limited by the creator.” Jd. Thus, a charter school cannot bring a

constitutional claim against its chartering district, just as a municipal corporation cannot bring a

constitutional claim® against its creator.’ Pocono Mountain Charter Sch., 908 F. Supp. 2d at 612.

See also I-Lead Charter Sch.-Reading v. Reading Sch. Dist., No. CV 16-2844, 2017 WL 2653722,

at *3 (E.D. Pa. June 20, 2017) (“[A] charter school cannot sue its creator school district under

[section 1983].”). Of the four charter school Plaintiffs that remain, only Propel-East brings a claim

against its chartering school district. Propel-East is a regional charter school authorized by WHSD

and Penn Hills School District. As such, Propel-East does not have standing to bring constitutional

claims against WHSD.

6 “Courts that have allowed a municipality or municipal corporation to assert claims against its

creator have generally permitted claims only for violations of the Supremacy Clause.” Pocono

Mountain Charter Sch., 908 F. Supp. 2d at 612 . See also Atl. Coast Demolition & Recycling, Inc.

v. Bd. of Chosen Freeholders of Atl. Cnty., 893 F.Supp. 301, 314 (D.N.J. 1995) (“[M]unicipalities

may assert claims against the creating state under the Supremacy Clause, but not under other

substantive constitutional guarantees.”).

7 See, e.g, Nw. Sch. Dist. v. Pittenger, 397 F.Supp. 975, 979 (W.D. Pa. 1975) (“a municipal

corporation created by a State for the better ordering of government has no rights under the United

States Constitution which it may invoke in opposition to the will of its creator”); Coleman v. Miller,

307 U.S. 433, 441 (1939) (“Being but creatures of the State, municipal corporations have no

standing to invoke the contract clause or the provisions of the Fourteenth Amendment of the

Constitution in opposition to the will of their creator.”); Williams v. Mayor & City Council of

Baltimore, 289 U.S. 36, 40 (1933) (*A municipal corporation, created by a state for the better

ordering of government, has no privileges or immunities under the Federal Constitution which it

may invoke in opposition to the will of its creator.”).

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The other three remaining charter school Plaintiffs, Propel-Homestead, Propel-Pitcairn, and

Propel-Hazelwood, are authorized by Steel Valley School District, Gateway School District and

Pittsburgh School District, respectively. Although none of the remaining charter school Plaintiffs

assert a claim against a creator school district, WHSD and MASD argue that the charter schools

nonetheless lack standing because they “have not plead any facts to support an injury in fact to the

schools, rather than certain individual students.” (ECF No. 28, p. 3). (See also ECF No. 30, p. 8).

Plaintiffs, however, argue that the charter schools have associational standing to bring these claims

on behalf of its students and their families. (ECF No. 29, p. 4, n.1).

Generally, “one may not claim standing . . . to vindicate the constitutional rights of some

third party.” The Pitt News v. Fisher, 215 F.3d 354, 362 (3d Cir. 2000) (quoting Singleton v.

Wulff, 428 U.S. 106, 114 (1976)). However, “[e]ven in the absence of injury to itself, an

association may have standing solely as the representative of its members.” Warth v. Seldin, 422

U.S. 490, 511 (1975). “[A]n association has standing to bring suit on behalf of its members when:

(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks

to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the

relief requested requires the participation of individual members in the lawsuit.” Hunt v.

Washington State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).

Each of these conditions to establish associational standing are met here. First, charter school

students and their families would have — and in the case of Rodney White, do have — standing to

sue their school district for failing to provide statutorily guaranteed school transportation. Second,

in bringing this suit, the charter schools seek to protect their students’ statutory right to receive

school transportation~ an interest clearly related to the charter schools’ purpose of educating its

students. Finally, neither the claims asserted by the charter schools, nor the relief sought requires

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individualized evidence from the charter schools’ students or their families. The charter schools

and the school districts are better suited to provide information regarding school transportation

policies. As such, Propel-Homestead, Propel-Pitcairn, and Propel-Hazelwood have standing on

behalf of their students and their families.

2. Plaintiffs have not established a reasonable likelihood of success on the merits of

their Fourteenth Amendment Due Process & Pennsylvania Constitution, Article I,

Section 1 Due Process claims.

This case is replete with issues that address matters of Pennsylvania law that would

probably be more suitable for Pennsylvania courts. Nevertheless, Plaintiffs have properly invoked

federal question jurisdiction because they raise federal questions under the Fourteenth Amendment

to the United States Constitution. The first is a claim that Defendants’ actions violated the due

process clause, which provides:

All persons born or naturalized in the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.

U.S. Const. Amd. XVI, Section 1 (emphasis added).® Plaintiffs allege that the deprivation of

transportation services via bus or van constitutes a deprivation of a property interest without due

process of law. Specifically, they argue that provisions of the Pennsylvania Public School Law,

24 P.S. §17-1726-A, confer an entitlement to bus or van service that rises to the level of a protected

property interest. The record shows, and WHSD concedes, that Defendants afforded no process

8 The Pennsylvania Constitution’s due process provisions contained in Article J are “substantially

equivalent” to the due process guarantees contained in the Fourteenth Amendment of the U.S.

Constitution. Hosp. & Healthsystem Ass’n of Pa. v. Com., 77 A.3d 587, 600, n.15 (Pa. 2013)

(quoting Krenzelak y. Krenzelak, 469 A.2d 987, 991 (Pa. 1983)). The examination of Plaintiffs’

due process claims is, therefore, coterminous.

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to Plaintiffs before terminating bus service. As such, if there was a deprivation of a property

interest, they would be able to prevail on their procedural due process claims. The critical question,

therefore, is whether Plaintiffs have established a reasonable likelihood of success on the question

of whether they were deprived of a property interest.

Whether Plaintiffs have been deprived of a property interest turns on Pennsylvania, rather

than federal, law. It is well-established that “a state law can create a property interest in a benefit

that the state cannot take away without due process of law.” Mullen v. Thompson, 155 F.Supp.2d

448, 452 (W.D. Pa. 2001). One alleging a property interest in a benefit protected by due process

must go beyond showing an unsubstantiated expectation of the benefit. Carter v. City of

Philadelphia, 989 F.2d 117, 120 Gd Cir. 1993) (citing Board of Regents v. Roth, 408 U.S. 564,

577 (1972)). They must demonstrate entitlement to a property interest created expressly by state

statute or regulation or arising from government policy or a mutually explicit understanding

between a government employer and an employee. Carter, 989 F.2d at 120 (citing Robb v. City of

Philadelphia, 733 F.2d 286, 292 (3d Cir. 1984)).

In Carter, for example, the United States Court of Appeals for the Third Circuit held that

a Pennsylvania state statute created a property right in hiring preferences for veterans because the

entitlement was clear and unequivocal. Carter, 989 F.2d at 122 (“The plain meaning of the statute,

in unequivocal terms, grants a preference to veterans in promotion. Thus, because Pennsylvania

law provides that veterans are to be accorded favorable consideration for promotions, we hold that

such preference is to be afforded constitutional protection.”). Here too, a Pennsylvania statute

created a clear and unequivocal entitlement to free school transportation for charter school

students. The relevant portion of the statute states:

Students who attend a charter school located in their school district of residence, a

regional charter school of which the school district is a part or a charter school

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located outside district boundaries at a distance not exceeding ten (10) miles by the

nearest public highway shall be provided free transportation to the charter school

by their school district of residence on such dates and periods that the charter

school is in regular session whether or not transportation is provided on such dates

and periods to students attending schools of the district.

24 Pa. Stat. Ann. § 17-1726-A(a) (emphasis added). Given the statute’s unambiguous and express

grant of an entitlement to free transportation for charter school students, that entitlement rises to

the level of a protected property interest that cannot be revoked without due process of law.”

Having determined that charter school students have a constitutionally protected property

interest in receiving free school transportation, the next question is what constitutes “free

transportation” under 24 Pa. Stat. Ann. § 17-1726-A. Plaintiffs argue that if a school district is

providing bus transportation to resident students attending the district’s public school, it is

“required to provide the same transportation to the resident charter school students[.]” (ECF No.

29, p. 10). Defendants, on the other hand, argue that, under 24 Pa. Stat. Ann. § 17-1726-A, “free

transportation” is not limited to transportation by school bus or school van, but includes providing

students with public transportation passes, reimbursing parents for transporting their own children,

and reimbursing charter schools for providing transportation. According to MASD, it “offered

public transportation passes, payment to parent drivers and payment to carriers contracted by

Charter School Plaintiffs” when bus drivers were not available. (ECF No. 28, p. 11). Similarly,

WHSD “has offered Port Authority bus tickets or transportation reimbursement to the Charter

School students who have had their busing service interrupted[.]” (ECF No. 30, pp. 4-5). Each of

these transportation options, Defendants argue, satisfies the statutory obligation to provide “free

°In Mosaica Academy Charter School v. Commonwealth of Pennsylvania Dep't of Educ., 813 A.2d

813 (Pa. 2002), the Supreme Court of Pennsylvania found that an earlier version of the Charter

School Law mandated public school districts to provide transportation to charter school students,

even where the school was located outside of the students’ home district.

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transportation” to resident charter school students. (ECF No. 28, p. 11; ECF No. 30, pp. 9-10).

The Court must determine, therefore, whether the substitutes to traditional busing offered by

Defendants satisfies the Pennsylvania statutory mandate that they provide transportation to charter

school students.

Plaintiffs have not cited, nor has the Court located, a single case where a Pennsylvania

Court has interpreted the free transportation mandate conferred by Section 17-1726-A to require

transportation by school bus or van. Rather, in two recent cases, the respective trial court has

rejected that position and, on appeal, the Commonwealth Court has either avoided the issue or

affirmed the trial court’s determination.

In Bell v. Wilkinsburg Sch. Dist. 252 A.3d 708, 710 (Pa. Commw. Ct. 2021), the plaintiffs

(including Propel-Homestead) sued the Wilkinsburg School District when it stopped providing

school bus transportation to charter school students and offered Allegheny County Port Authority

bus passes as a replacement. The Court of Common Pleas of Allegheny County held a non-jury

trial on the plaintiffs’ claims and ultimately dismissed them. The trial court concluded, in relevant

part, that the defendant school district did not violate Section 1726-A “by not providing private

bus transportation to resident students in grades K-5 who attend Propel [Charter Schools’]

schools.” Jd. at 711. On appeal, the Commonwealth Court of Pennsylvania avoided the issue of

whether providing public transportation passes satisfies the requirement to provide “free

transportation” under the statute, instead focusing on whether the school district needed pre-

approval from the Pennsylvania Department of Education before altering its transportation

policies. Jd. at 712. It held that the defendant school district violated Section 23.3 of the State

Board of Education’s regulations by failing to obtain board approval before changing its

transportation regimen. The school district sought, and obtained, Allocatur from the Supreme

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Court of Pennsylvania. Bell v. Wilkinsburg Sch. Dist., 266 A.3d 447 (Pa. 2021) (Holding that the

issue of whether passes for public transit will satisfy the obligation to provide free transportation

was not before the Supreme Coutt.).

In Hoffman v. Steel Valley Sch. Dist., 107 A.3d 288, 295 (Pa. Commw. Ct. 2015), the parent

of a student brought an action seeking a preliminary injunction against the defendant Steel Valley

School District when it discontinued van transportation to a charter school within the district. In

place of van transportation, the district offered to reimburse families for the cost of public

transportation or for the cost of mileage if parents provided transportation. The record established

that the school district did “not provide busing or van service for any of its regular students

attending schools within the district, but it provides a shuttle service for kindergarten students back

and forth between its primary center and its elementary schools.” Jd. at 290. The Court of

Common Pleas of Allegheny County denied the request for injunctive relief, holding that the

requirement of free transportation mandated by Section 1726-A should be read in pari materia

with the transportation provisions of 24 P.S. §13-1362, which permits the use of public

transportation. The trial court did not specifically examine or decide whether the retmbursement

policy satisfied the statutory requirement.

On appeal, in deciding whether the plaintiff had established a clear right to the relief sought,

the Commonwealth Court of Pennsylvania did not offer an opinion on “whether the mileage

reimbursement satisfies the School District's statutory obligation[.|” Hoffman., 107 A.3d at 294.

The court did, however, affirm the Court of Common Pleas’ decision that Section 17-1726-A and

Section 1362 should be construed in pari materia. Moreover, it affirmed the determination that

doing so “does not compel a conclusion that the School District must provide private transportation

for Plaintiffs children to Young Scholars by means of a bus or a van[.]” Jd. at 295.

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Thus, neither in Bell nor in Hoffman did Pennsylvania appellate courts hold that the

transportation mandate of Section 17-1726-A can only be satisfied by school bus or van

transportation. Indeed, in Hoffman, the Commonwealth Court of Pennsylvania determined that

neither that statute nor Section 1362 required transportation by bus or van, affirming a

determination that public transportation passes satisfy the right to “free transportation” under the

Charter School Law.

As stated above, Plaintiffs’ federal due process claim (and its parallel state constitutional

equivalent) hinge on the question of whether the state entitlement to free transportation can be

satisfied by substituting public transportation passes and/or reimbursements for traditional school

bus or van service. This Court must make its determination based on the applicable Pennsylvania

statute and cannot ignore Pennsylvania cases interpreting that statute and the obligations that it

imposes. In both Bell and Hoffman, the Court of Common Pleas of Allegheny County held that

school bus or van transportation was not necessary to satisfy the requirements of Section 17-1726-

A, and that transit passes and mileage reimbursement were permissible substitutes. In Hoffman,

the Commonwealth Court of Pennsylvania affirmed that determination as to transit passes. This

Court—a federal court—is faced, therefore, with a situation where no Pennsylvania state court has

reached the conclusion that Plaintiffs argue is required under the relevant Pennsylvania state

statute. Indeed, both the Court of Common Pleas of Allegheny County and the Commonwealth

Court of Pennsylvania have rejected their position. The Court will not substitute its judgment for

the judgment of the courts of the sovereign with the most immediate interest in this instant

dispute—Pennsylvania. In light of the repeated refusal of Pennsylvania courts to decide that the

free transportation requirement of Section 17-1726-A can only be satisfied by school bus or van

transportation, the Court cannot find that Plaintiffs have met their burden of demonstrating a

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reasonable likelihood of success on that issue. The Court does not believe that existing

Pennsylvania case law interpreting the critical state statute supports Plaintiffs’ position. Nor does

the Court believe that it (rather than Pennsylvania courts) is the appropriate tribunal to develop

Pennsylvania law beyond (or in opposition to) the direction set by the Court of Common Pleas of

Allegheny County and the Commonwealth Court of Pennsylvania.

3. Plaintiffs have not established a reasonable likelihood of success on the merits of

their Fourteenth Amendment Equal Protection & Pennsylvania Constitution

Article I, Section 26 Equal Protection claims.

Plaintiffs also claim that Defendants’ actions violated the Equal Protection Clause of the

Fourteenth Amendment, which states that “[n]o state shall . . . deny any person within its

jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.!° Plaintiffs bring the

equal protection claim as a “class of one.” To establish a “class of one” equal protection claim, “a

plaintiff must allege that (1) the defendant treated him differently from others similarly situated,

(2) the defendant did so intentionally, and (3) there was no rational basis for the difference in

treatment.” Hill vy. Borough of Kutztown, 455 F.3d 225, 239 (3d. Cir. 2006).

Plaintiffs argue that charter school students who reside within WHSD or MASD were treated

differently from the districts’ students who are similarly situated. As the appropriate level of

constitutional scrutiny, Plaintiffs rely on Plyler v. Doe, 457 U.S. 202 (1982), to argue that a

heightened level of scrutiny should be applied. Specifically, Plaintiffs argue for intermediate

scrutiny, “which is less demanding than ‘strict scrutiny’ but more demanding than the standard

rational relation test, [and] has generally been applied only in cases that involved discriminatory

10 An equal protection claim brought under Article I, Section 26 of the Pennsylvania Constitution

should be evaluated using “the same standards applicable to federal equal protection claims. ”

Kramer v. W.C_A.B. (Rite Aid Corp.), 883 A.2d 518, 532 (Pa. 2005).

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classifications based on sex or illegitimacy.” Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 459

(1988).

In Plyler, the Supreme Court was asked to determine whether, under the Equal Protection

Clause of the Fourteenth Amendment, a state could deny undocumented children the public-school

education it was providing to its citizens and to legally admitted immigrants. Plyler, 457 U.S. at

205. In deciding that question, the Court applied a heightened level of scrutiny for several fact-

specific reasons. While acknowledging that there is no fundamental right to an education under

the U.S. Constitution, the Court noted the importance of education and the lasting impact caused

by its deprivation. /d. at 221. The deprivation of education alone, however, was not enough to

apply heightened scrutiny. The Court feared that denial of public education to undocumented

children could promote “the creation and perpetuation of a subclass[.]” Jd. at 230. More

importantly, the Court emphasized the fact that the children being denied an education were

“special members of this underclass” because they were “not accountable for their disabling

status.” Jd. at 219, and 223. In other words, the Court recognized that the undocumented children

should not be held responsible for their parents’ decisions or citizenship status.

The holding in Plyler has not been extended “beyond the ‘unique circumstances,’ that

provoked its ‘unique confluence of theories and rationales[.]’” Kadrmas v. Dickinson Pub. Sch.,

487 U.S. 450, 459 (1988) (quoting Plyler, 457 U.S. at 239 (Powell, J., concurring); Plyler, 457

U.S. at 243 (Burger, C.J., dissenting)) (citations omitted). To determine whether circumstances

are sufficiently similar to those presented in Plyler, we look “to the elements central to the Plyler

Court’s invocation of heightened scrutiny in the context of a deprivation of public school

instruction: a denial of education; plaintiffs’ lack of power over their disabling status; the

importance of the right in maintaining basic institutions; and the consequences to individuals

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flowing from deprivation of the right.” Brian B. v. Com. of Pa. Dep’t of Educ., 51 F. Supp. 2d

611, 625 (E.D. Pa. 1999). Here, unlike in Plyler, children are not being deprived access to the

public school system, but to transportation to that public school system. Additionally, children in

this matter are not being punished for illegal conduct of their parents and there is no threat of

Defendants’ alleged statutory violations creating a “subclass.” Because the facts here are not

sufficiently similar to the “unique circumstances” in Plyler, the Court declines to extend a

heightened level of scrutiny.

Thus, to state a claim for a “class of one” equal protection claim, Plaintiffs must satisfy the

rational basis prong. That is, in addition to showing that Defendants intentionally treated Plaintiffs

differently from others who were similarly situated, Plaintiffs must show that “there was no

rational basis for the difference in treatment.” Hill v. Borough of Kutztown, 455 F.3d 225, 239

(3d. Cir. 2006). “A plaintiff must show that the differential treatment was irrational and wholly

arbitrary. These challenges fail when there is any reasonably conceivable state of fact that could

provide a rational basis for the classification.” Tucker Indus. Liquid Coatings, Inc. v. Borough of

E. Berlin, 85 F. Supp. 3d 803, 811 (M.D. Pa. 2015) (internal citations omitted). Indeed, under the

rational basis level of scrutiny, a defendant does not even have to articulate specific reasons to

support its actions. Mary Beth’s Towing LLC v. Borough of Brownsville, 2018 WL 1784556, *6

(W.D. Pa. Apr. 13, 2018). Rather, “the rational basis standard permits a court to hypothesize

interests that might support the governmental distinctions.” Jd.

In light of the high bar of showing unconstitutional governmental action under the rational

basis test, Plaintiffs have not established the “high hurdle” needed to establish reasonable

likelihood of success on the merits of their equal protection claim. Stated another way, the

Defendants have offered explanations for their transportation decisions that are sufficient to satisfy

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the very deferential standard required for rational basis scrutiny. WHSD offered testimony that it

prioritizes its own district students to maximize the number of students that can be transported

with limited bus space (in light of the fact that far more students attend district schools than the

charter schools). McKeesport offered similar testimony to support prioritizing its own students on

the available buses. In addition, WHSD offered the rationale that its transportation decisions are

also influenced by the union drivers’ contract.

Plaintiffs have failed to overcome the great deference afforded to governmental decisions

under the rational basis test. As such, they are not able to establish a reasonable likelihood of

success on the merits of their equal protection claims.

4. State Court Causes of Action.

The bulk of Plaintiffs’ claims relate to their due process and equal protection claims.

Nevertheless, their motion incorporates all of the causes of action set forth in their Complaint—

which includes stand-alone state law claims without federal analogue. Because the Court has

found that Plaintiffs are unlikely to succeed on the merits of their federal claims, it will abstain

from examining their independent state law causes of action."!

'l When a district court has supplemental jurisdiction over state law claims under 28 U.S.C. §

1367(a), it has discretion to exercise or decline to exercise this jurisdiction. De Asencio v. Tyson

Foods, Inc., 342 F.3d 301, 311 Gd Cir. 2003). The statute provides that a district court “may

decline to exercise supplemental jurisdiction” if it “has dismissed all claims over which it has

original jurisdiction.” 28 U.S.C. § 1367(c)(3). “[W]here the claim over which the district court

has original jurisdiction is dismissed before trial, the district court must decline to decide the

pendent state claims unless considerations of judicial economy, convenience, and fairness to the

parties provide an affirmative justification for doing so.” Borough of West Mifflin v. Lancaster, 45

780, 788 (3d Cir.1995).

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IV. CONCLUSION

For the reasons set forth above, Plaintiffs’ Motion for Entry of a Temporary Restraining

Order and Preliminary Injunction (ECF No. 13) will be denied. An Order of Court will follow.

BY THE COURT:

2tu &

WILLIAM S. STICKMAN IV

UNITED STATES DISTRICT JUDGE

P -22..

Dated

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