Neshaminy S.D. v. PHRC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Neshaminy School District, :

Petitioner :

:

v. : No. 1765 C.D. 2019

: Argued: December 8, 2020

Pennsylvania Human Relations :

Commission, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge 1

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY

JUDGE COHN JUBELIRER FILED: June 7, 2021

Neshaminy School District (District) petitions for review of the Final Opinion

and Order of the Pennsylvania Human Relations Commission (Commission) finding

that the District had violated Section 5(i)(1) of the Pennsylvania Human Relations

Act 2 (Act), 43 P.S. § 955(i)(1), through the District’s use of Native American

imagery and the term “Redskins” because such use is harmful to non-Native

American students as they create impermissible stereotypes. The Commission

found that the evidence of harassment of, or a loss of educational opportunities to,

1

This case was assigned to the opinion writer before January 4, 2021, when Judge Brobson

became President Judge.

2

Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 955(i)(1).

Native American students was either speculative or insufficient and thus did not

support claims of discrimination. However, based on a liberal construction of

Section 5(i)(1), it concluded that the harm to non-Native American students

constituted unlawful discrimination under the Act. As relief, citing the opinion of

Andre Billeaudeaux, the District’s expert, that the goal is to “Educat[e] not

Eradicat[e],” the Commission allowed the District to continue using the name

Redskins, but required the District to provide education regarding the negative and

positive attributes associated with the term. (Final Opinion (Op.) and Order at 51-

52.) In addition, the Commission directed the District to “cease and desist from []

us[ing] [] any and all logos and imagery in the Neshaminy High School [(High

School)] that negatively stereotypes Native Americans” based on Mr.

Billeaudeaux’s testimony that most of the currently used images and logos should

be changed because they were not regionally appropriate and were historically

misaligned. (Id. at 54, 57.) The District has petitioned this Court for review,

asserting 14 reasons why the Commission erred or abused its discretion.

I. Background

A. Relevant Statutory Provisions

At issue is whether the Commission’s finding of this violation is consistent

with the language of Section 5(i)(1) of the Act, which provides, in pertinent part:

It shall be an unlawful discriminatory practice . . .

For any person being the owner, lessee, proprietor, manager,

superintendent, agent or employe of any public accommodation, resort

or amusement to:

(1) Refuse, withhold from, or deny to any person because of his race,

color, sex, religious creed, ancestry, national origin or handicap or

disability, . . . either directly or indirectly, any of the

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accommodations, advantages, facilities or privileges of such public

accommodation, resort or amusement.

43 P.S. § 955(i)(1) (emphasis added). Under Section 9(a) of the Act,

[a]ny person . . . aggrieved by an unlawful discriminatory practice

may make, sign and file with the Commission a verified complaint, in

writing, which shall state the name and address of the person, employer,

labor organization or employment agency alleged to have committed

the unlawful discriminatory practice complained of, and which shall set

forth the particulars thereof and contain such other information as may

be required by the Commission. . . . The Commission upon its own

initiative . . . may, in like manner, make, sign and file such complaint.

...

43 P.S. § 959(a) (emphasis added). Here, the Complaint was filed by the

Commission, but we will refer to it having been filed by the “PHRC” to delineate

between the adjudicatory and prosecutorial arms of the Commission. Finally, the

legislature stated in Section 12(a) of the Act that the Act’s provisions “shall be

construed liberally for the accomplishment of the purposes thereof, and any law

inconsistent with any provisions hereof shall not apply.” 43 P.S. § 962(a).

B. Factual Background

Based on the Commission’s findings of fact, we set forth the following

background. The District has 11 schools, one of which is the High School, where

approximately 2,500 to 3,000 students attend. The District’s enrollment process

allows, but does not require, students to identify their race or ancestry. Thus, the

District’s enrollment data does not accurately reflect how many students identify as

Native American. Since the 1930s, the High School has used the name Redskins for

its sports teams, yearbook, and other purposes. Until the 1980s, the High School

had a live mascot, but it does not currently have such a mascot. The High School

uses and displays “[l]ogos and generic caricature images of Native Americans” in

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and around the “High School and near its athletic playing fields.” (Final Op. and

Order, Finding of Fact (FOF) ¶ 11.)

In 2001, with the High School’s Principal’s approval, the student newspaper,

the Playwickian, 3 published an editorial entitled “Reading, Writing and Racism,”

challenging the continued use of the term Redskins, which a majority of the editorial

staff considered “to be a culturally insensitive antiquated racist slur.” (Id. ¶¶ 47, 49-

50.) The goal of the editorial was to obtain a change in the name, to make others

aware that the name was offensive, and to propose banning the publication of the

word in the Playwickian. No change to the name occurred as a result of the editorial.

In 2012, Donna Boyle, a District resident and mother of one former student

and a current High School student, who is of Cherokee and Choctaw ancestry,

complained that the term Redskins was a personally offensive racial slur. (Id. ¶¶ 53-

54.) Among others, Ms. Boyle complained that: the image used was not that of a

Native American from the region; the term, in her view, related to the “bloody

history when whites were paid a bounty to exterminate Native Americans”; and other

racial slurs, such as the “N” word, would not be allowed. (Id. ¶¶ 55-57.) No action

was taken as a result of these complaints. Ms. Boyle complained to the High

School’s Principal, Dr. Robert McGee, who responded that “everyone in Neshaminy

is a proud Redskin,” to which she responded that her family was not proud of the

term. (Id. ¶¶ 59-60.) Ms. Boyle continued to complain to Dr. McGee and sent

psychological and educational research, reflecting how the use of the term Redskins

had “long-term harmful effects on self-esteem and achievement of Native Americans

and also has long-term negative effects on non-Native Americans as well.” (Id.

¶ 61.) Ms. Boyle also complained at School Board meetings and sent hundreds of

3

Although the Commission uses “Playwicken” as the name of the student newspaper, the

record establishes that the correct name is “Playwickian.”

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emails to Dr. McGee and the School Board explaining the effect on her High School

student son, Son, and requesting that action be taken. Again, the District took no

action on Ms. Boyle’s concerns. In 2014, Ms. Boyle invited Dr. McGee to a

symposium at a local university where a Native American speaker was speaking

about Native American rights and the use of the term Redskins. Dr. McGee attended

the symposium, after which he made arrangements for Son to receive a yearbook

without the word Redskins on it.

In October 2013, Dr. McGee approved two editorials for the Playwickian: one

supporting a ban on the use of the term Redskins in the newspaper and one opposing

the ban. The students had become aware of Ms. Boyle’s concerns, and a majority

of the editorial staff found the term offensive and, after taking a vote, decided to

write the editorial that the term would no longer be used in the Playwickian. Many

of those editors believed the use of the term violated School District’s Policy 547,

which describes the handling of discrimination and harassment, because the term

was inherently offensive and racist. The counter position was written by another

editor who did not find the term offensive. This editor would later change her mind

after doing more research. The District placed the ban on hold, and Dr. McGee

emailed the Playwickian’s advisor, Tara Huber, that the hold would last until further

consideration of the impact of the ban and whether the ban would infringe on other

students’ rights. At the time, the District’s Policy 600 allowed for the redaction of

slurs from school publications. On November 21, 2013, the student editors, along

with their parents and Ms. Huber, attended a meeting with Dr. McGee and the High

School’s assistant principal. At the meeting, Dr. McGee gave the student editors

materials explaining the District’s conclusion that the student editors had no right to

issue the ban. Per the testimony of one of the student editors, the students were given

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15 minutes to present their positions, and the administrators took 1 hour and 45

minutes to present their position, which included concerns regarding the negative

reactions other students and the community would have to the ban, particularly on

social media. Several of the students felt they were talked at, bullied, intimidated,

and harassed. The ban remained in place. Following the meeting, the student editors

provided Dr. McGee with internet posts illustrating the types of negative reactions

they were receiving, and a student’s parents advised the District’s Superintendent,

Robert Copeland, that the student had been yelled at by a teacher in front of other

students for being ungrateful and questioning how she could write articles criticizing

the use of the term Redskins. Upon being informed of the complaint, Dr. McGee

spoke to the teacher and instructed the teacher to apologize. Dr. McGee later made

an announcement to the High School students to address the controversy, asking the

students to debate the matter respectfully, which was aimed at addressing the

criticism of the Playwickian’s student editors. (Reproduced Record (R.R.) at 852a-

54a, 1287a.) In November 2013, the Playwickian editors published an editorial

critical of placing the ban on hold, which Dr. McGee had approved prior to

publication. (Id. at 856a, 1506a.)

In 2014, the District began the process of revising Policy 600, including

establishing a Policy Committee that held a number of public meetings attended by

the students, who were allowed to express their opposition to the proposed revisions.

The School Board revised Policy 600 in June 2014, which now states that

the term “Redskins” when referring to the School District mascot and

when used to express the writer’s viewpoint about the term shall not be

construed as a racial or ethnic slur and is not intended by the Board of

the School Directors as a racial or ethnic slur. Consequently, no student

or school official shall censor or prohibit use of the term or of an article

or editorial that has been submitted that contains the word.

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(FOF ¶ 101 (quoting District Ex. 68).) After reading the new Policy 600, the student

editors concluded it precluded them from treating Redskins as they would treat other

racial slurs. When a letter to the editor containing the term Redskins was submitted,

the student editors attempted to redact the term believing it was offensive. Dr.

McGee and the Superintendent directed the student editors to publish the letter in

full, refusing to allow the redaction. The Playwickian did not run the letter but

published an editor’s note, without Dr. McGee’s approval. Dr. McGee attempted to

collect copies of the Playwickian containing the unapproved note. After this

incident, other students became upset with the Playwickian’s student editors and tore

up newspapers in the High School’s hallways.

In the spring of 2016, a student submitted an article for publication in the

Playwickian about the “Mr. Redskin” pageant, which had been held since 2010.

Two votes occurred on whether to include the full word in the article, one by all

Playwickian students – who voted 14-13 to use the full word, and one by only the

editorial board, which voted 8 to 1 to not use the word. Based on the second vote,

the editors chose to publish a redacted version of the article online. The author’s

parents contacted Dr. McGee, who removed the redacted version from the website,

republished the article without redaction, and directed that students only be allowed

to upload articles to the website with Ms. Huber’s supervision.

C. Complaints of Discrimination

In September 2013, Ms. Boyle filed a complaint on behalf of Son with the

Commission, alleging ancestry-based harassment of Son. Following an

investigation, a finding of probable cause was issued. Ms. Boyle’s complaint was

scheduled for a public hearing in October 2015, but she voluntarily withdrew the

complaint before the hearings began. In October 2015, within days of Ms. Boyle

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voluntarily withdrawing her complaint, the PHRC filed a Complaint against the

District. In December 2017, the PHRC filed a First Amended Complaint asserting

two counts against the District for allegedly violating the Act: (1) by denying equal

education opportunities because of race/ancestry, Native American, (a) to Native

American students by creating a hostile racial environment harmful to Native

American students, and (b) to non-Native American students by allowing non-

Native American students to develop harmful inappropriate stereotypical attitudes

and beliefs about Native Americans; and (2) through the harassment of Native

American students based on their ancestry/race. The District responded, denying

the allegations and challenging, among other things, the Commission’s jurisdiction

over the District and that the factual claims relied upon by the PHRC occurred

outside the Act’s statutory limitations period of 180 days. Public hearings before

the Commission’s permanent Hearing Examiner occurred over a number of days, at

which the PHRC and the District presented testimonial and documentary evidence.

D. Proceedings Before the Hearing Examiner

Before offering evidence on the merits, the parties presented arguments on

preliminary matters, including whether the Commission had jurisdiction over the

District and to what extent, if at all, the testimony of the PHRC’s expert, Ellen

Staurowsky, Ph.D., could be considered based on the District’s Motion in Limine.

On the former issue, the Hearing Examiner explained the Commission would decide

the issue. On the latter issue, the Hearing Examiner granted the Motion in Limine

in part, precluding Dr. Staurowsky from making specific causation opinions as to

harm caused to District students by the use of the term Redskins and related imagery

and logos because she had not visited the District or interviewed anyone from the

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District, but not precluding Dr. Staurowsky’s testimony in its entirety. The

restriction on Dr. Staurowsky’s testimony was not challenged on appeal.

Dr. Staurowsky testified regarding the use of the term Redskins and related

imagery in history and sports and the effect such use, particularly by educational

institutions, has on Native Americans and non-Native Americans as follows. Dr.

Staurowsky opined, based on her research, that Native American sports imagery has

the capacity to create a racially hostile learning environment and promote

insensitivity toward Native Americans, and the stereotyping of Native Americans

fosters a prejudicial view that the stereotyping of minority groups in general is

acceptable. (FOF ¶¶ 39-40.) One of the dictionary sources cited by Mr.

Billeaudeaux actually indicated that the term Redskins is a racial pejorative and can

be offensive, disparaging, and inappropriate. The term can be associated with a

period in the nation’s history when it referred to a monetary reward paid as a bounty

for killing a Native American. It is similar to the “N” word and other racially

offensive names that are considered to be racial slurs. Dr. Staurowsky explained

there were over 100 academic reports reflecting that the use of Native American

sports imagery threatens the health and well-being of Native American students.

Further, she testified that resolutions by the National Congress of American Indians

(NCAI), representing 260 tribes, called for cessation of stereotyping of Native

Americans in sports imagery, and a statement by the United States (U.S.)

Commission on Civil Rights in 2001 that “call[ed] for an end to the use of Native

American images and team names by non-Native schools” because they are

disrespectful and offensive, particularly when found in educational institutions. (Id.

¶¶ 43-44.) The U.S. Commission on Civil Rights’ statement indicated that, in

addition to harming Native American students, “[t]he stereotyping of any racial,

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ethnic, religious or other groups when promoted by . . . public educational

institutions, teach[es] all students that stereotyping of minority groups is

acceptable,” the “false portrayals [of Native Americans through imagery and team

names] prevent non-Native Americans from understanding the true historical and

cultural experiences of American Indians,” and “encourage[s] biases and prejudices

that have a negative effect on contemporary Indian people.” (Id. ¶ 44.) Dr.

Staurowsky also testified about other policies, including the NCAA’s 2005 policy

prohibiting member schools from participating in postseason competition if the

schools maintained a nickname, logo, mascot, or moniker that was offensive to

Native Americans if the school did not have permission of a local tribe. (Id. ¶ 45.)

The PHRC offered the testimony of witnesses who found the word Redskins

offensive and to be a racial slur, including the editor-in-chief of the Playwickian in

2001; alumni who had changed their mind after performing independent research; a

2015 graduate who interacted with members of the local Lenni-Lenape tribe who

had expressed that the term was offensive; and a 2016 graduate of Asian descent

who also felt that he needed to represent voices not heard. (Id. ¶¶ 37a-37b, 37d-

37g.) A 25-year teacher at the High School testified that she viewed the term as

being derogatory, a racial pejorative, and a slur, and that the use of the word harms

the students, making them anxious, embarrassed, and closed off from others. (Id.

¶ 37c.) Ms. Huber, an English teacher at the High School and the advisor for the

Playwickian, testified that it is a racist term to her and that, after attending a

conference attended by around 5,000 Native Americans from more than 500

different tribes, she believed some Native Americans found it offensive, while others

viewed it as a term of honor. (Id. ¶ 37h.) A member of the Oglala Lakota Nation

testified that he had pushed against the use of Native Americans as mascots since

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his childhood and that the term is a racial slur that harms the mental health and

stability of children because it dehumanizes and objectifies Native Americans. He

stated the term is offensive, should not be used in society, and is akin to black face.

(Id. ¶ 37i.)

Ms. Boyle testified about her experiences and feelings about the term being

offensive and discriminatory. She also testified about the experiences of Son, who

did not testify. The District objected to Ms. Boyle’s testimony as to Son’s

experiences, as being hearsay. The Commission responded that Ms. Boyle’s

testimony was based on her observations of Son and fell within an exception to the

hearsay rule. The Hearing Examiner allowed the testimony to the extent it was based

on Ms. Boyle’s observations. (R.R. at 816a.) Ms. Boyle testified that Son seemed

anxious and his self-esteem was affected. It reached a point, Ms. Boyle stated, that

Son entered into a special program where he would attend school in the morning and

then go to work for the rest of the day.

Mr. Billeaudeaux, the District’s expert, testified as follows. He is a

representative of the Native American Guardian Association (NAGA), a non-profit

organization with the goal of helping people understand the different sides of the

debate regarding the use of the term Redskins. NAGA believed that the term was a

positive symbol and image for Native Americans and a tribute to Native American

culture, and described its mission as “Education not Eradication.” (FOF ¶ 17.) Mr.

Billeaudeaux has 30 years’ experience working with different Native American

organizations, including with 100 different tribes, in an attempt to understand the

concerns and culture of Native Americans. From that experience, Mr. Billeaudeaux

explained Native Americans wanted to be understood and represented, and to sustain

their cultures. There are over 600 Native American tribes, with differing cultures,

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beliefs, histories, and languages. The term “Native American” does not refer to a

monolithic or homogenous group, but has become a common way to describe a

group of separate nation tribes of indigenous people. The term Redskins can be

derogatory, but, citing his research and a dictionary definition, there are tribes that,

as a part of the tribes’ culture, paint themselves red for various sacred ceremonies,

battle, initiation, and burial, and call themselves “red-painted people, redmen[,] and

redskins” and promote the use of the term Redskins. (Id. ¶¶ 18, 21.)

Mr. Billeaudeaux opined “it would be ok to use the term Redskin as long as

the name and symbols are both informed appropriately and accurately.” (Id. ¶ 27.)

In Mr. Billeaudeaux’s opinion, “a school should be able to keep the Redskin[s] name

and logo so long as the term and logos are given the dignity and respect they

deserve[] and are displayed carefully, with cultural sensitivity and in a historically

accurate manner.” (Id. ¶ 28.) As for the specific imagery and logos used by the

District, Mr. Billeaudeaux explained the image currently displayed at the High

School was a Plains “warrior” image and is a common native themed image.

However, this image is historically misaligned, and Mr. Billeaudeaux informed the

District and Dr. McGee that it should be changed to ensure historical accuracy.

Further, during his tour of the High School, Mr. Billeaudeaux observed a photograph

of a student wearing feathers, which Mr. Billeaudeaux indicated should be removed

because wearing feathers by someone who did not earn them was comparable to

wearing unearned military medals, referred to as “stolen valor.” (Id. ¶ 32.)

Both Mr. Billeaudeaux and Dr. Staurowsky opined about surveys taken of

Native Americans as to whether the professional football team name Redskins was

offensive. A 2004 study reported that 9 out of 10 Native American fans of the team

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did not find the term offensive, and a 2016 survey found similar results. Dr.

Staurowsky questioned the methodology of, and questions posed by, those surveys.

The District presented a number of fact witnesses, including two with some

Native American ancestry and a member of the District’s School Board, regarding

their positive views of the meaning of the word Redskins and who did not find the

term or imagery offensive, although some acknowledged that the word was

considered by others to be, and was defined, as a racial slur. (FOF ¶ 36a-36g.) Two

other members of NAGA, Mark Yancey and Eunice Davidson, testified that many

Native Americans think of Redskins as a positive term and not offensive. Mr.

Yancey did not condone the wearing of costumes intending to depict Native

Americans or the wearing of unearned feathers, which is inappropriate. Ms.

Davidson acknowledged that the leader of her own tribe, the Dakota Sioux, did not

agree with the use of the term Redskins. (Id. ¶ 36i-36j.) Mr. Copeland, the District’s

superintendent from October 1, 2012, to June 30, 2015, testified that he understood

some Native Americans found the word offensive, and that he went back and forth

over the issue. After reading some written materials, Mr. Copeland reached the point

where he agreed that the District should no longer use Native American imagery and

should change the name. (Id. ¶ 36h.) Dr. McGee testified regarding his interactions

with Ms. Boyle, the events surrounding the Playwickian’s editorials, and the revision

of Policy 600. He understood that some considered the term a racial slur, but he

considered the term a tradition and “a local community cultural vernacular.” (R.R.

at 828a-29a.) With regard to Ms. Boyle, he stated that Ms. Boyle had informed him

that Son had left school one day because a photo of students who had painted

themselves red for a high school football game was shown at a school assembly.

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II. The Commission’s Final Opinion and Order

After the public hearing and submission of post-hearing briefs, the Final

Opinion and Order was issued, addressing the issue of whether the District was

violating the Act, as well as other legal issues raised by the District related to the

Commission’s jurisdiction and the timing of the factual claims. The Commission

addressed these preliminary issues before resolving the ultimate issues before it.

The District argued that the Commission lacks jurisdiction because Section 5

applies to the District only as an employer and Section 5(i) does not apply to public

school districts because a public school district is not a “person” as defined by

Section 4(a) of the Act. The Commission rejected this argument, citing

Pennsylvania Human Relations Commission v. Chester School District, 233 A.2d

290 (Pa. 1967), and Chestnut Hill College v. Pennsylvania Human Relations

Commission, 158 A.3d 251 (Pa. Cmwlth. 2017), which held that public school

districts were public accommodations pursuant to Section 4(l) of the Act 4 over which

the Commission had jurisdiction. According to the Commission, it was necessary

for it to exercise jurisdiction over the District to address the allegations raised in this

matter, and reading the Act liberally to effectuate its purpose, which is “to secure the

full enjoyment of public accommodations,” supported the exercise of jurisdiction.

4

“[P]ublic accommodation” is defined by Section 4(l) of the Act as meaning, in relevant

part:

any accommodation, . . . which is open to, accepts or solicits the patronage of the

general public, including but not limited to . . . kindergartens, primary and

secondary schools, high schools, academies, colleges and universities, extension

courses and all educational institutions under the supervision of this

Commonwealth, . . . and all Commonwealth facilities and services, including such

facilities and services of all political subdivisions thereof, but shall not include any

accommodations which are in their nature distinctly private.

43 P.S. § 954(l) (emphasis added).

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(Final Op. and Order at 26.) Therefore, the Commission concluded that it had

jurisdiction over the District because the District is, itself, a public accommodation

under Section 4(l) of the Act. (Id., Conclusions of Law (COL) ¶¶ 1, 4-5.)

The District next asserted that any claim or fact that occurred prior to April

11, 2015, 180 days before the PHRC filed its initial Complaint on October 8, 2015,

was time barred. The Commission disagreed that any fact or claim occurring prior

to April 2015 could not be considered because, under the continuing violation

doctrine, the use of the term and associated imagery and logos was not an isolated

incident but have been consistently used by the District since the 1950s.

Accordingly, the Commission held that the factual claims based on the District’s

ongoing use of the term Redskins and related logos and imagery constitute acts that

were continuing in nature. (Id. ¶ 6.)

The Commission then turned to the merits of the allegations against the

District. It acknowledged that this matter reflects the ongoing debate between those

who consider the use of Native American names, imagery, and logos a respectful

way to preserve the respect and dignity of Native American culture, and those who

were trying to eliminate such use by public schools and universities because they are

considered harmful. (Final Op. and Order at 27.) The Commission cited various

organizations, including: the NCAI, which represents over 500 Native American

tribes, that were in opposition to the use of the term Redskins believing it was

“disparaging to a substantial portion of Native Americans” (id.); the NCAA’s actions

in 2005 based on that organization deeming the use of Native American nicknames

as being hostile and abusive toward a person’s ethnicity, national origin, or race; and

the U.S. Commission on Civil Rights’ statement on why Native American names,

imagery, and logos should not be used and calling for the end of such use as they are

15

offensive and disrespectful. The Commission noted the U.S. Commission on Civil

Rights’ “deep concern that inaccurate representations of Native Americans [was] a

distorted view of the past and stereotypes Native Americans which encourage biases

and prejudice towards a minority group.” (Id. at 27.) According to the Commission,

efforts to obtain voluntary curtailment or changes through the legal process have not

been completely successful, citing the unsuccessful legal efforts to get the

Washington Redskins professional football team to change its name under the

premise of cancelling the team’s trademark because the word was disparaging. 5

With this background, the Commission first addressed the count in the

Complaint alleging that the District’s use of the term Redskins violates Section 5(i)

by “creating an intimidating, hostile and offensive educational environment on the

basis of race/ancestry, Native American.” (Id. at 30.) The Commission explained

that “[o]ne key factor that must be shown in an alleged harassment claim is that

someone was, in fact, harassed.” (Id.) The Commission considered Ms. Boyle’s

testimony regarding Son’s reactions to the alleged sources of harassment, to which

the District objected as being hearsay. Noting that the question of Son’s experiences

could have been resolved by his testifying, the Commission took an adverse

inference from Son and two other Native American students not testifying that they

had been harmed. (Final Op. and Order at 32-33, COL ¶ 7.) The Commission

rejected Dr. Staurowsky’s testimony that harm to Native American students could

be assumed, finding “the term Redskins is associated with both positive and negative

connotations” and, therefore, distinguishing it from the “N” word. (Final Op. and

5

We note that, subsequent to the Commission’s Final Opinion and Order, this professional

football team stopped using the name Redskins. See Les Carpenter, Washington’s NFL Team to

Retire Redskins Following Sponsor Pressure and Calls for Change, WASHINGTON POST (July 13,

2020), https://www.washingtonpost.com/sports/2020/07/13/redskins-change-name-

announcement/ (last visited June 4, 2021).

16

Order at 33-34.) Because “no Native American victim testified leaving only

speculation on whether Native American students were harmed,” and with no

assumption of harm possible, the Commission determined that the PHRC “failed to

present sufficient evidence that a Native American student or students were harmed

by the use of the word Redskin[s] and the associated logos and imagery” and

dismissed these allegations. (Id. at 33-34 (emphasis added).)

The Commission nonetheless found that the “record contains adequate

evidence that the term ‘Redskin[s]’ is offensive to Native Americans and it should

not be used as a team nickname for any school in the Commonwealth. . . .” (Id. at

34.) The Commission examined the testimony of Ms. Boyle and found that she

provide[d] compelling evidence that she, as a parent of a Native

American student who attended [] [H]igh [S]chool, considered the term

‘Redskin[s]’ to be offensive, that she repeatedly told the school

administrators that the term was offensive, and that she tried her best to

protect her children from an environment in which a school full of Non-

Native American administrators and students preferred to ignore the

negative impact the term ‘Redskins’ was having on herself and her

[S]on, because the non-Native Americans felt a sense of ownership over

the term and the accompanying imagery, claiming it was a continuing

source of pride to those Non-Native Americans.

(Id. at 36.) Therefore,

[w]hile the absence of [] testimony [from a Native American student]

may be legally significant for purposes of this individual case, [the

Commission] conclud[ed] that the record contains sufficient testimony

to support a finding that the term ‘Redskins’ is offensive and, as a

matter of guidance from the [Commission], should no longer be

allowed to be used in the Commonwealth in a public school setting . . .

because the record shows that many Native Americans and many non-

Native Americans consider it to be a racist term.

(Id. at 37 (emphasis added).)

17

The Commission then turned to the remaining component of the PHRC

Complaint: “that the educational environment at the [] High School was in some

way harmful to both Native American and non-Native American students.” (Id.)

The Commission first noted the prior ruling on the Motion in Limine, which

precluded Dr. Staurowsky from testifying about the impact of the use of the term

Redskins and associated imagery and logos on District students, but allowed her to

testify about the impact that the name, imagery, and logos “might have in an

educational setting on both Native American students and non-Native American

students.” (Id. at 36-37.) It then addressed the District’s assertion that Dr.

Staurowsky’s testimony could not be given any weight because she was not qualified

to render any opinions as she lacks the education, training, and experience needed,

and merely was a conduit of the opinions of others. The Commission rejected this

challenge, noting: (1) the District did not object to Dr. Staurowsky’s acceptance as

an expert at the hearing; and (2) Dr. Staurowsky had the education, experience, and

training necessary for her to be accepted as an expert. (Id. at 38.) The Commission

held that the record showed that Dr. Staurowsky conducted extensive research, wrote

articles relevant to the issues in the matter, and taught courses in discrimination in

educational settings, including a course on issues related to Native American

mascots. Thus, Dr. Staurowsky’s opinion “regarding the impact the name Redskins

and associated logos and imagery might have in an educational setting on both

Native American students and non-Native American students” was allowed. (Id. at

37-38.)

After reiterating “the simple fact that not a single Native American student

was called to testify” and finding that numerous High School student witnesses

testified that they did not witness any discrimination of Native American students,

18

the Commission concluded there was “insufficient evidence that Native American

students experienced educational harm.” (Id. at 38-39 (emphasis added).) The

Commission then examined “whether non-Native American students were harmed

in some way,” as an independent viable claim notwithstanding that it had dismissed

the claims related to harm to Native American students. (Id. at 38.) In considering

the merits of this question, the Commission observed the District’s focus was on the

Playwickian’s student editors and the negative reactions they experienced, but the

Commission held that the educational harm found here focused instead on those

students “who, because of the stereotypical environment, displayed their

insensitivities” through those negative reactions. (Id. at 39 (emphasis added).)

The Commission explained that there was a “fundamental concept that schools have

a fiduciary duty owed [to] [their] students to avoid social harm,” and, as recognized

by the U.S. Commission on Civil Rights, “schools have [a] responsibility to educate

students, not [to] use the school’s influence to perpetuate misrepresentations of any

culture or people,” which can lead to discrimination. (Id. at 39-40.) Here, the

Commission held, the District’s use of the name Redskins and related imagery and

logos constituted stereotypes that consciously and subconsciously influenced how

students act and feel toward Native Americans, and teaches those students, who have

little to no contact with Native Americans, that stereotyping minority groups is

acceptable. (Id. at 39-40.) Therefore, the Commission concluded that “[t]he PHRC

ha[d] established that Native American logos and imagery at the . . . High School

are harmful to non-Native American students as such logos and imagery create

impermissible stereotypes.” (COL ¶ 10 (emphasis added).)

As support for its conclusions, the Commission cited Mr. Billeaudeaux’s

testimony that when Native American names, logos, and imagery are used by

19

schools, they should be authentic, accurate, and appropriate, should be done with

cultural sensitivity, and should be accompanied with specific education accounting

for the diversity of Native Americans. The High School’s warrior imagery,

however, is not a local tribe, but a Plains warrior, which is misaligned, not regionally

specific, and should be changed according to Mr. Billeaudeaux. It further pointed

to Mr. Billeaudeaux’s testimony that the term Redskins may be offensive in the right

context, that it was culturally insensitive to treat Native Americans as a single group,

and that it was culturally ignorant not to be able to identify the imagery being used

correctly, as was the case here. The Commission also highlighted that the District’s

allowing students to wear feathers to football games is the type of stereotype that

mocks and denigrates sacred symbols, which Mr. Billeaudeaux agreed was akin to

stealing valor and mimics a sacred tradition for entertainment. (Id. at 41-42.) The

Commission also found that there was no meaningful instruction about Native

Americans and the school’s name and related imagery and logos, which Mr.

Billeaudeaux considered a necessity, that would better enable students to avoid the

view that it was acceptable to tolerate racism or discrimination. (Id. at 42-43.) The

Commission reviewed Dr. Staurowsky’s criticisms of the District’s generic Native

American warrior images, which she opined imparted negative stereotypical

attitudes and beliefs about Native Americans and their way of life. The Commission

found that the High School’s students’ negative stereotypical attitudes and

insensitivities, of which the students were unaware, became apparent through their

negative reactions to the Playwickian’s student editors’ attempts to convey their

opinions that the term Redskins was a slur and discriminatory. These negative

reactions included a teacher yelling at one of the student editors during class, internet

posts aimed at the student editors, and being called derogatory names by fellow

20

students, which resulted in the student editors feeling threatened, bullied,

intimidated, and harassed. (FOF ¶¶ 87, 92; R.R. at 757a.) One student editor

resigned from the Playwickian and another thought about withdrawing from all

activities, did not want to go to school, and had trouble sleeping and concentrating.

(R.R. at 726a-27a, 889a.) Based on all of this evidence, the Commission concluded

that despite being aware of the numerous stereotypes of Native Americans being

displayed at the “[] High School, [the District] failed to provide non-Native

American students with the information necessary to prevent the formation of the

idea that specifically stereotyping Native Americans is acceptable and, by extension,

generally, the idea that stereotyping other minorities is also acceptable.” (Final Op.

and Order at 45.)

As for whether, under these circumstances, this harm to non-Native American

students was a violation of the Act, the Commission recognized that “this aspect of

the case is quite novel[,]” observing that “Section 5(i)(1) of the [Act] appears to be

limited to instances where advantages and privileges of a public accommodation are

denied because of ‘his’ race or ancestry.” (Id.) However, because the Act is to be

construed liberally to accomplish its purposes, the Commission concluded that the

educational harm to the non-Native American students constitutes prohibited

discrimination. (Id.) In support of its broad interpretation, the Commission provided

analogies to retaliation cases, such as Shellenberger v. Summit Bancorp, 318 F.3d

183 (3d Cir. 2003), and housing discrimination cases, such as Trafficante v.

Metropolitan Life Insurance Co., 409 U.S. 205 (1972), where “testers” are used to

reveal disparities, and non-targeted bystanders who are found to have a cause of

action based upon the discrimination against minority housing applicants. A similar

analogy could be found, the Commission explained, in the employment area, where

21

non-targeted bystanders can challenge the discrimination of targeted minorities. See

Clayton v. White Hall Sch. Dist., 875 F.2d 676 (8th Cir. 1989); Waters v. Heublein,

Inc., 547 F.2d 466 (9th Cir. 1976). While the bystanders were not the objects of the

discrimination, they could be considered, for standing purposes, aggrieved persons

and assert a cause of action on that basis. Here, the Commission held, “the District’s

use of stereotypical logos and imagery of Native Americans impacts everyone” and

“[t]he non-Native American student bystanders [were] impacted by the District’s

discrimination against Native Americans in that the non-Native American students

[were] denied a proper educational environment in a public accommodation”

because they were, “in effect, taught that stereotyping of another group is

acceptable.” (Final Op. and Order at 48.) It concluded that the Act “should be broad

enough to cover bystander individuals who are injured but were not the target of the

acts of discrimination” and, therefore, the District was liable for violating Section

5(i)(1) of the Act. (Id. at 49.)

In fashioning the remedy for this violation, the Commission noted its broad

equitable powers, as recognized by the Supreme Court, Murphy v. Pennsylvania

Human Relations Commission, 486 A.2d 388 (Pa. 1985), and its authority to

“require[ a] respondent to cease and desist from [the] unlawful discriminatory

practice and to take such affirmative action . . . as, in the judgment of the

[C]ommission, will effectuate the purposes of th[e A]ct.” (Final Op. and Order at

50 (quoting 43 P.S. § 959(f)).) The only limitation on that authority, the Commission

explained, was that the remedy could not seek to achieve ends other than those stated

in the Act. Further, its remedy should eradicate the unlawful discrimination, make

the complainant whole, and discourage future discrimination. Although the PHRC

argued that the District should be ordered to no longer use the term Redskins, the

22

Commission was “mindful that there are various views held about the term . . . , both

within Native American tribes and with non-Native Americans.” (Id. at 51.) Citing

Mr. Billeaudeaux’s and NAGA’s position that the way to address the issue is

“Educat[e] not Eradicat[e],” the Commission allowed the continued use of the term

Redskins, but directed the District to provide “proper[] educat[ion] about both the

negative attributes associated with the term and the positive reasons to retain the

term,” which would “better equip students to begin to understand that there are

differences among Native Americans about the term Redskins and what these

differences are.” (Id. at 51-52.) The Commission explained what it believed this

education should cover, based on the evidence presented, and made

recommendations on how the District could go about that education process. The

stereotypical imagery and logos, and the appropriation of customs or traditions, the

Commission explained, posed problems and should not be normalized for the

purposes of entertainment, citing Mr. Billeaudeaux’s testimony. Therefore, the

Commission ordered the District to “cease and desist from the use of any and all

logos and imagery in the . . . High School that negatively stereotypes Native

Americans.” (Id. at 57.) The District now petitions this Court for review, 6 raising

14 allegations of error by the Commission. 7

6

The Court’s review of a Commission order “is limited to determining whether

constitutional rights have been violated, [whether] an error of law has been committed[,] or

whether the Commission’s findings of fact are supported by substantial evidence.” Doral II

Condo. Ass’n v. Pa. Hum. Rels. Comm’n, 779 A.2d 605, 607 n.3 (Pa. Cmwlth. 2001).

7

The arguments have been reorganized and consolidated for ease of discussion. The issues

the District raises are: (1) whether the Commission has jurisdiction over the District; (2) whether

the statute of limitations barred any claims or the consideration of events that occurred prior to

April 11, 2015; (3) whether the Commission erred in holding that the alleged harm to non-Native

American students arising from the discrimination of Native American students constituted

prohibited discrimination; (4) whether the Commission’s evidentiary rulings regarding the

testimony of Dr. Staurowsky and Ms. Boyle were erroneous; (5) whether the Commission’s

(Footnote continued on next page…)

23

III. Discussion

A. Whether the Commission has Jurisdiction Over the District.

1. The Parties’ Arguments

The District argues as follows. The Commission erred in holding that it could

exercise jurisdiction over the District under these circumstances. Public schools do

not qualify as “persons” for purposes of Section 5(i) and only fall under the

Commission’s jurisdiction when they act as an employer. Nor do the Commission’s

regulations at 16 Pa. Code § 47, which apply in education matters, provide

jurisdiction, as that would exceed the authority conferred by the legislature. Even if

the regulations did not exceed that authority, they only apply to schools “open to . . .

the general public” and public schools are not open to the general public, only to

school district residents, and the regulations address matters not at issue here.

(District’s Brief (Br.) at 27.) The cases upon which the Commission relied to find

jurisdiction, Chester School District and Chestnut Hill College, are distinguishable

because they did not involve the same Act provisions.

The Commission responds as follows. It properly exercised jurisdiction in

this matter because the District is, itself, a public accommodation, and by defining

educational institutions under the supervision of the Commonwealth as public

accommodations, 43 P.S. § 954(l), the legislature intended to confer jurisdiction in

the Commission over those institutions. Other statutory language, such as that in

findings regarding the term Redskins and related imagery being offensive and harming non-Native

American students were supported by substantial evidence; (6) whether the Commission exceeded

its authority in fashioning its remedy; (7) whether the Commission erred in finding that non-Native

American students have a retaliation claim against the District; (8) whether the PHRC’s

investigation was properly conducted; (9) whether the Final Opinion and Order violated the free

speech rights of others; (10) whether the Commission erred in finding that the District had a

fiduciary duty to its students which it violated; (11) whether the Final Opinion and Order violated

the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, U.S.

CONST. amend. XIV; and (12) whether five specific findings of fact were supported by substantial

evidence.

24

Section 2(a) of the Act stating that “the denial of equal . . . public accommodation

opportunities because of such discrimination . . . result[s] in racial segregation in

public schools,” 43 P.S. § 952(a), reflects a legislative intent to confer the

Commission with jurisdiction over public schools as public accommodations.

Further, Chestnut Hill College and Chester School District clearly hold that the

Commission has jurisdiction over public school districts as public accommodations.

2. Analysis

Section 5(i)(1) provides, in relevant part, that it is an unlawful discriminatory

practice for “any person being the . . . superintendent, agent or employe of any public

accommodation . . . to” “[r]efuse, withhold from, or deny to any person because of

his race, . . . [or] ancestry . . . either directly or indirectly, any of the accommodations,

advantages, facilities or privileges of such public accommodation . . . .” 43 P.S.

§ 955(i)(1). Our Supreme Court, in Chester School District, discussed the history

of this provision and the Act, which was enacted, in part, in recognition of the evils

of both de jure and de facto segregation of public schools – which are public

accommodations under Section 4(l) of the Act. 233 A.2d at 294-96. In 1961, the

legislature amended and retitled the former Pennsylvania Fair Employment Practice

Act 8 as the Act, and expanded the protection from discrimination to include housing

and public accommodations. The Pennsylvania Supreme Court stated in Chester

School District that, in those amendments, the legislature specifically referred “to

the evils resulting from racial segregation in the public schools.” Id. at 296. Focusing

only on de jure incidents of discrimination “is a vast oversimplification” of the Act,

the Supreme Court explained, “and does not adequately reflect the mandate that the

statute be liberally interpreted to reflect its purpose,” which is that discrimination

8

Act of October 27, 1955, P.L. 744.

25

“in the public schools, whatever its source, threatens ‘the peace, health, safety and

general welfare of the Commonwealth and its inhabitants.’” Id. at 297 (quoting

Section 2(a) of the Act, 43 P.S. § 952(a)) (emphasis added). This is because even

“seemingly neutral decisions by school officials” may perpetuate discrimination, and

narrowly construing Section 5(i)(1) to exclude only de jure discrimination “would

totally deprive the Commission of effectiveness in th[is] area. . . .” Id. at 298.

Notwithstanding the Supreme Court’s explanation as to the history and stated

purpose of the Act, particularly in reference to preventing discrimination in public

school districts, the District claims, and the Concurring Opinion agrees, that the

Commission lacks jurisdiction because Section 5(i)(1) uses the word “person” and

the definition of “person” does not expressly include school districts. The District

maintains that it is not a “person” when it acts as an educational institution and,

therefore, the Commission lacks jurisdiction to determine whether the District

violated the Act. The District asserts that Chester School District and Chestnut Hill

College are distinguishable because neither addressed the argument that a public

school district is not a person for purposes of Section 5(i)(1). We are unpersuaded

by the District’s arguments.

The definition of “person” in Section 4(a) uses the language “includes, but is

not limited to,” which is expansive, not limiting, language. 43 P.S. § 954(a)

(emphasis added). In addition, school districts, as recognized by the Supreme Court

in Chester School District, are, by definition, public accommodations under

Section 4(l), the privileges and advantages of which cannot be withheld or denied to

persons based on protected characteristics. Further, the controversy in Chester

School District, as here, was whether a public school district violated Section 5(i)

of the Act by engaging in unlawful discriminatory practices based on race. 233 A.2d

26

at 291, 296. The Supreme Court there held that the Commission had jurisdiction

over the school district because school districts are public accommodations and

rejected the school district’s argument that finding the Commission had “jurisdiction

in this area will result in the usurpation of the [school district’s] functions under the

Public School Code” of 1949. 9 Id. at 298.

Agreeing with the District, the Concurring Opinion’s contrary interpretation

of “person” would eviscerate the Act. The Concurring Opinion’s narrow

interpretation focuses on the inclusion or exclusion of school districts in different

definitions in the Act to conclude that the legislature did not intend school districts

to be subject to the Commission’s jurisdiction under these circumstances. Section 4

begins by advising that the words used in the Act are defined by this section “unless

a different meaning clearly appears from the context.” 43 P.S. § 954 (emphasis

added). In the context of refusing or denying access to a public accommodation on

the basis of a protected class, and mindful that the legislature used the phrase

“included, but not limited to,” the word “person” must be read more broadly, not

narrowly, to include a public accommodation itself. The legislature’s expansive

language and directive that these terms be considered in their context must be given

their full effect so as to further the object of the Act; the narrow reading of the

Concurring Opinion does not do so.

Shortly after the Act was amended in 1961, our Supreme Court explained that

the legislative intent was to recognize and remedy the “evils” of unlawful

discrimination within public schools, which was the issue in Chester School

District, 233 A.2d at 296. In contrast, under the Concurring Opinion’s reasoning,

the Commission would now lack jurisdiction to consider complaints of

9

Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101—27-2702.

27

discrimination within public schools except when they act as an employer or when

the discrimination is the result of individual action by a “‘superintendent, or

employe[e]’ of a school district.” Neshaminy Sch. Dist. v. Pa. Hum. Rels. Comm’n,

__ A.3d __, __ (Pa. Cmwlth., No. 1765 C.D. 2019, filed June 7, 2021) (Brobson, J.,

concurring), slip op. at 5. Such reasoning, however, leaves claims of systemic

unlawful discrimination, like those at issue in Chester School District, that result

from an action or policy of a school district, beyond the protections of the Act.

The Supreme Court did not insulate the school district in Chester School District

from liability for its systemic unlawful discrimination. The Concurring Opinion’s

unnecessarily narrow interpretation is contrary to one of the very purposes of the Act

as stated by our Supreme Court. The legislature has shown no disagreement with

the Supreme Court’s application of Section 5(i) to public schools in Chester School

District.

Given this precedent, the word “person” in Section 5(i)(1) and the definition

of “person” in Section 4(a) should continue to be read in pari materia, not as

limiting the Commission’s jurisdiction, but, rather, describing whose actions

(superintendent, agent or employe) may be imputed to the public accommodation

for purposes of imposing liability. The inclusion of a school district in the term

“employer” does not indicate a lack of jurisdiction over school districts when they

are accused of unlawful discrimination in providing a public accommodation, but a

recognition that school districts are also employers and cannot engage in unlawful

discriminatory practices against their employees. Such discrimination would not

fall under Section 5(i)(1) of the Act, but within other subsections of Section 5.

Likewise, the exclusion of schools or school districts from the definition of political

subdivision does not reflect an intent to limit the Commission’s jurisdiction, but is

28

instead a recognition that schools are already covered by the Act’s terms through

their inclusion in the definition of both public accommodation and employer. For

these reasons, we conclude that the Commission’s finding that it had jurisdiction is

consistent with the Act and precedent.

B. Whether the Statute of Limitations Barred any Claims or Consideration of

Facts Based on Events that Occurred Prior to April 11, 2015.

1. The Parties’ Arguments

The District argues that the Commission erred in hearing claims that fell

outside the 180-day statute of limitations, which commenced on April 11, 2015, and,

therefore, the claims and facts based on the use of the term Redskins and related

imagery and events occurring prior to that date should not have been considered.

Because the PHRC had knowledge of these events prior to October 2015, when it

filed the initial Complaint, the District contends the PHRC was not diligent in

bringing the claims and it was not reasonable for the PHRC to wait to bring those

claims. Thus, per the District, the continuing violation doctrine does not apply.

The Commission responds that the claims are not time barred because the

continuing violation doctrine applies, noting that the PHRC filed the initial

Complaint in October 2015 within days of the withdrawal of the Boyle complaint.

The District’s longtime use of the term Redskins and related imagery is a continued

practice since at least the 1950s, and into the 180-day period, justifying the

application of the continuing violation doctrine, according to the Commission.

2. Analysis

Section 9(h) of the Act requires that “[a]ny complaint filed pursuant to this

section must be so filed within one hundred eighty days after the alleged act of

discrimination . . . .” 43 P.S. § 959(h). Statutes of limitations are intended to keep

stale claims out of courts. Havens Realty Corp. v. Coleman, 455 U.S. 363, 380

29

(1982). However, a complainant can pursue a claim under the Act for conduct

occurring outside this 180-day period if the conduct is part of an ongoing pattern or

practice. Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 481 (3d Cir. 1997),

abrogated on other grounds, Mandel v. M & Q Packaging Corp., 706 F.3d 157 (3d

Cir. 2013). This is because “[w]here the challenged violation is a continuing one,

the staleness concern disappears.” Havens Realty Corp., 455 U.S. at 380. Where a

complainant “challenges not just one incident of conduct . . . , but an unlawful

practice that continues into the limitations period, the complaint is timely when it is

filed within 180 days of the last asserted occurrence of that practice.” Id. at 381.

Here, there is no dispute that the complained of conduct continued into the 180-day

period or that the use of the term Redskins and related imagery and logos was a

practice that had been ongoing since at least the 1950s. Thus, there was no error in

the Commission applying the continuing violation doctrine.

Further, the District’s contentions that there was a lack of diligence and that

it was unreasonable to have waited until October 2015 to file the initial Complaint

are not persuasive. Prior to October 2015, the matter was proceeding based on the

Boyle complaint, and it was not unreasonable to allow that complaint to challenge

the District’s actions, rather than the PHRC filing a complaint of its own.

Accordingly, these are not reasons for reversing.

C. Whether the Commission Erred in Finding that the Harm to Non-Native

American Students Could Constitute Unlawful Discrimination Under the Act

After it Found that the Evidence Could Not Support Claims of Discrimination

Against Native American Students.

1. The Parties’ Arguments

The District argues as follows. The Commission erred in concluding that non-

Native American students have “bystander” claims based on the alleged

30

discrimination against Native American students through the District’s use of the

term Redskins and related imagery and logos. The Act has no language that supports

a bystander claim, and there are no cases interpreting the Act to confer such a claim.

Section 5(i)(1) recognizes discrimination claims made only by “a ‘person’ who

experiences discrimination not a larger group who do not.” (District’s Br. at 31.)

The liberal construction language of the Act does not allow for claims that are “not

remotely addressed in the Act.” (Id. at 32.) Citing cases in which limitations on the

Act were recognized, the District argues that the Commission lacks the authority to

recognize claims, remedies, or powers not expressly provided by the Act. Moreover,

the Commission erred in relying upon federal civil rights law and cases interpreting

those laws to find a bystander claim for non-targeted persons because the language

of those federal laws is different from the Act’s language which limits claims.

Finally, there was no evidence that Native American students from the District were

actually harmed as a result of the District’s continued use of the term Redskins and

related imagery and logos, which the Commission acknowledged in its Final

Opinion and Order. “Non-Native American students cannot have a claim for

discrimination against Native American students” in the absence of evidence that

the Native American students were harmed. (Id.) Therefore, no viable bystander

claim can exist under these facts.

The Commission responds as follows. It properly held that a discrimination

claim could be based on non-Native American students suffering harm “because of

discrimination against Native American students.” (Commission’s Br. at 21

(emphasis added).) This conclusion is supported by the Act’s language, citing

Section 5(i)(1), which uses “directly or indirectly,” and Section 9(a) that allows

“any person claiming to be aggrieved by an alleged unlawful discriminatory

31

practice” to “make, sign and file with the Commission a verified complaint,” 43 P.S.

§§ 955(i)(1), 959(a) (emphasis added). The Commission’s finding that the District

was liable for violating Section 5(i)(1) was based on the harm to non-Native

American students through the District’s perpetuation of racial stereotypes of Native

Americans within the High School. This finding is supported by substantial

evidence, the Act’s language, and federal court decisions interpreting federal anti-

discrimination laws, which similarly recognized bystander claims. Finally, contrary

to the District’s argument, the language of the federal laws and the Act regarding

who may file a complaint is similar, as these laws recognize that persons who are

“aggrieved” by a discriminatory practice may file complaints.

2. Analysis

Our review focuses on the claims asserted, the Commission’s resolution of

those claims, and the Commission’s findings in support thereof. There were two

counts in the Complaint. With regard to the claim of harassment of Native American

students, the Commission found that there was no testimony by a Native American

student, “leaving only speculation on whether Native American students were

harmed,” and the Commission did not accept the “idea that harm [could] be

assumed.” (Final Op. and Order at 33-34 (emphasis added).) With regard to the

count based on the denial of educational opportunities to Native American students

and non-Native American students, the Commission similarly found, based on “the

simple fact[s] that not a single Native American student was called to testify” and

numerous High School student witnesses testified that they did not witness any

discrimination of Native American students, that there was “insufficient evidence

that Native American students experienced educational harm.” (Id. at 38-39

(emphasis added).) The Commission thus dismissed both claims of harm to Native

32

American students as a result of the District’s actions. There has been no appeal of

those findings and, therefore, for purposes of this appeal, we must accept these

conclusions of the Commission. We express no independent opinion as to whether

Native American students were harmed by the use of the term Redskins and related

imagery and logos as this determination of the Commission has not been appealed

to this Court.

Although the Commission dismissed those claims, it found that “[t]he non-

Native American student bystanders [were] impacted by the District’s

discrimination against Native Americans . . . .” (Id. at 48 (emphasis added).)

Specifically, the Commission found that using the name Redskins and related logos

and imagery, which are stereotypes, without providing students the necessary

educational tools, resulted in educational harm by allowing the students to conclude

that it was acceptable to discriminate against Native Americans or other minorities.

(Id. at 41-44.) Therefore, we must determine whether, when the allegations of harm

to Native American students on the basis of race/ancestry are dismissed by the

Commission, the Commission could nonetheless find an unlawful discriminatory

practice in violation of Section 5(i)(1) of the Act on the basis that non-Native

American students suffered educational harm through the District’s actions.

An “unlawful discriminatory practice” is defined in Section 5(i)(1) as

follows:

It shall be an unlawful discriminatory practice . . . :

For any person being the owner, lessee, proprietor, manager,

superintendent, agent or employe of any public accommodation, resort

or amusement to:

(1) Refuse, withhold from, or deny to any person because of his

race, color, sex, religious creed, ancestry, national origin . . .

33

either directly or indirectly, any of the accommodations,

advantages, facilities or privileges of such public

accommodation, resort or amusement.

43 P.S. § 955(i)(1) (emphasis added). This plain language links the cause of a

deprivation of public accommodation to that person’s race, ancestry, or some other

identified characteristic under the Act. The touchstone of interpreting statutory

language is to ascertain and effectuate the intent of the legislature, and “[w]hen the

words of a statute are clear and free from all ambiguity, the letter of it is not to be

disregarded under the pretext of pursuing its spirit.” Section 1921(a), (b) of the

Statutory Construction Act of 1972 (SCA), 1 Pa.C.S. § 1921(a), (b). Applied here,

the clear and plain language of Section 5(i)(1) requires a finding that the District

deprived Native American students of a public accommodation, based on the Native

American students’ race or ancestry, in order for there to be an unlawful

discriminatory practice. The Commission recognized this in its Final Opinion and

Order, stating that “Section 5(i)(1) of the [Act] appears to be limited to instances

where advantages and privileges of a public accommodation are denied because of

‘his’ race or ancestry.” (Final Op. and Order at 45.)

Section 5(i)(1) is definitional; it does not address who might be aggrieved by,

nor who might suffer harm from, an unlawful discriminatory practice. Those

individuals are addressed in Section 9(a) of the Law, which authorizes

[a]ny person claiming to be aggrieved by an alleged unlawful

discriminatory practice may make, sign and file with the Commission

a verified complaint, in writing, which shall state the name and address

of the person, employer, labor organization or employment agency

alleged to have committed the unlawful discriminatory practice

complained of, and which shall set forth the particulars thereof and

contain such other information as may be required by the Commission.

34

43 P.S. § 959(a) (emphasis added). While this section describes who is “aggrieved”

and thus has standing to bring a claim, in order for a complaint to ultimately be

successful, there must be a determination that an unlawful discriminatory practice

as defined by Section 5(i)(1) existed. Without an unlawful discriminatory practice,

there can be no practice upon which “any person” can “claim[] to be aggrieved by.”

43 P.S. § 959(a). The Commission seemingly recognized that discrimination against

Native Americans is a necessary predicate, stating the non-Native Americans were

harmed “by the District’s discrimination against Native Americans. . . .” (Final

Op. and Order at 48 (emphasis added).) However, the Commission found

insufficient evidence that Native American students were harmed and dismissed the

counts alleging harassment and the denial of educational opportunity to Native

American students. It is for this reason that the Commission’s reliance on Section

9(a) is unsuccessful.

Section 12(a) of the Act also does not aid the Commission’s argument.

Section 12(a) states that the Act’s provisions “shall be construed liberally for the

accomplishment of the purposes thereof, and any law inconsistent with any

provisions hereof shall not apply.” 43 P.S. § 962(a). Although the Act is to be

liberally construed, the principle of liberal construction “does not justify interpreting

a statute in a manner that is contrary to the plain and ordinary meaning of the

statute’s text.” Johnson v. Phelan Hallinan & Schmieg, LLP, 235 A.3d 1092, 1100

(Pa. 2020). The text of a statute “cannot be ignored in pursuit of its spirit even

though a broad or liberal construction would obviously protect society . . . .”

Commonwealth v. Clanton, 151 A.2d 88, 92 (Pa. 1959). While the Commission’s

desire to extend the protections of Section 5(i)(1) is understandable, such extension

must be authorized by the plain language of the statute. See Pa. Hum. Rels. Comm’n

35

v. Zamantakis, 387 A.2d 70, 72 (Pa. 1978) (holding that the Commission has no

authority beyond the powers conferred to it under the Act). Here, the Commission

found unlawful discrimination based on harm to non-Native American students,

despite dismissing the claims as to Native American students. However, this

exceeded what is allowed by Section 5(i)(1)’s plain language and cannot be upheld.

Where the Commission’s interpretation is not consistent with the plain language of

the Act, that interpretation carries little weight. See Off. of Admin. v. Pa. Lab. Rels.

Bd., 916 A.2d 541, 550 n.11 (Pa. 2007) (reviewing the Pennsylvania Labor Relations

Board’s interpretation of the Public Employe Relations Act 10). Any extension of

Section 5(i)(1) must be made by the legislature, not the Commission or the courts.

The federal cases cited by the Commission are similarly inapplicable based

on the Commission’s findings. The Commission concluded that Trafficante and the

other federal cases involving housing and employment discrimination require that

“[c]ivil rights statutes . . . be construed liberally to support a broad prohibition

against discrimination, regardless of who is the direct target of the acts of

discrimination” because “discriminatory conduct can reach groups of people and

not simply the individual who is the target of the animus.” 11 (Final Op. and Order

at 49 (emphasis added).) Nonetheless, there still must be a target of the acts of

discrimination. It does not mean that those who are not the objects of the

discrimination can bring legal action under the Act when the claim of discrimination

against a targeted individual or group has been dismissed. Instead, the federal cases

10

Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101—1101.2301.

11

Pennsylvania courts are not to read the Act in a vacuum but are to interpret it in

accordance with federal anti-discrimination laws except where there is a specific difference within

the Act’s language that warrants different treatment. Fasold v. Justice, 409 F.3d 178, 184 n.8 (3d

Cir. 2005); see also Phila. Hous. Auth. v. Am. Fed. of State, Cnty. & Mun. Emps., 956 A.2d 477,

484 n.12 (Pa. Cmwlth. 2008) (explaining that Pennsylvania courts look to federal court decisions

interpreting the Act’s federal counterparts).

36

upon which the Commission relies involved claims that, although brought by those

who were not the objects of discrimination, alleged the suffering of injuries as a

result of the discrimination against protected individuals or groups.

In Trafficante, tenants of an apartment complex filed legal actions, alleging

that the complex’s owner discriminated against non-white applicants on the basis

of race and that the tenants were injured by this discrimination because, among other

reasons, “they had lost the social benefits of living in an integrated community.” 409

U.S. at 207-08. These actions were dismissed on the basis that the tenant bystanders

were not entitled to sue under Section 810(a) of Civil Rights Act of 1968, 42 U.S.C.

§ 3610(a), which the district court narrowly construed to “permit complaints only by

persons who are the objects of discriminatory housing practices.” Trafficante, 409

U.S. at 208. The U.S. Supreme Court reversed and remanded, reasoning that the

language used in that section, “[a]ny person who claim[ed] to have been injured by

a discriminatory housing practice” should be broadly construed to give standing

not only to the objects of the discrimination, the minority housing applicants, but

also to those who are injured by that discrimination, the tenant bystanders. Id. at

207, 212 (emphasis added). 12 Similarly, in Waters, an employee filed an action

against her employer alleging that the employer discriminated against her

African-American and Spanish-surnamed co-workers and sought to enjoin the

employer from discriminating against those groups, to whom the bystander did not

belong. 547 F.2d at 467-69. After dismissal based on her lack of standing, the U.S.

12

In Trafficante, the Court explained that “complaints by private persons are the primary

method of obtaining compliance with” anti-discrimination laws, and, citing language from Section

2000e-5(a) of the Civil Rights Act of 1968, 42 U.S.C. § 2000e-5(a), that “allowed a suit to be

started ‘by a person claiming to be aggrieved,’” “concluded that the words used showed ‘a

congressional intention to define standing as broadly as is permitted. . . .’” Trafficante, 409

U.S. at 209 (emphasis added) (internal citations omitted).

37

Ninth Circuit Court of Appeals reversed and remanded, explaining that the matter

was “logically indistinguishable from Trafficante” and the bystander could continue

to bring her claims. Id. at 469. 13 These cases found bystander standing based on

colorable claims of discrimination against protected individuals or groups, allowing

the litigation to proceed. However, they did not, as the Commission did here, find

discrimination based on the bystanders’ harm after dismissing as unsubstantiated

the claims of discrimination against protected individuals or groups.

In Clayton, an employee filed a complaint based on harm that she suffered as

a result of her employer’s racial discrimination against an African-American co-

worker. 14 875 F.2d at 678-79. In that case, the employer school district had allowed

the employee to enroll her child in the school where she was employed,

notwithstanding that she no longer resided in the school district. Id. at 678. When

an African-American co-worker who did not reside in the school district attempted

13

The complaint in Waters involved Title VII of the Civil Rights Act of 1968, but the Ninth

Circuit Court of Appeals applied Trafficante, 409 U.S. at 209-10, which was a Title VIII case, 42

U.S.C. § 2000e-5(f)(1). The U.S. Supreme Court has recently indicated that the aggrievement

necessary to file a claim under Title VIII and Title VII is not coextensive and that Title VII

aggrievement relates to whether the plaintiff falls within the “zone of interests sought to be

protected by the statutory provision whose violation forms the legal basis for [the plaintiff’s]

complaint.” See Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 176-77 (2011) (internal

quotation marks and citation omitted). Thus, the U.S. Supreme Court held that the plaintiff in

Thompson, who was fired after his co-worker and fiancée had filed a complaint for sex

discrimination, had standing to file a retaliation claim because he fell within the zone of interests

sought to be protected by Title VII, the intent of which was to protect employees from unlawful

discriminatory practices and included those, like this plaintiff, who would be “collateral damage”

of an employer’s unlawful act. Id. at 177-78.

14

The complaint in Clayton was dismissed due to the bystander not having standing to

assert the discrimination claims, and the Eight Circuit reversed, finding that she sufficiently alleged

an injury in fact, a hostile work environment, and the injury was an interest arguably within the

zone of interests to be protected or regulated by Title VII, which is to be liberally construed. 875

F.2d at 679-80 (citing, e.g., Trafficante’s statement that persons aggrieved included those who

were not the objects of discrimination but were injured by the benefit of interracial association).

38

to do the same for his child, the employer refused to do so on the basis that it was

against the school district’s policy, which had previously not been enforced. Id.

Thereafter, the employee was informed that her child could no longer attend the

school in the school district. Id. The employee filed an employment discrimination

action against the employer, claiming this event created a racially discriminatory

work environment, i.e., the discrimination toward her co-worker, by which she was

harmed. Although the employee was found to have standing, her discrimination

claim was dismissed because she could not prove discrimination as a matter of

law having “relie[d] upon a single incident of alleged discrimination” against her co-

worker. Id. at 680. Therefore, even though the employee could bring her claim

based on her alleged harm, she still had to prove the underlying discrimination

against the protected individual to be successful.

Thus, in the federal cases cited by the Commission, the bystander claims were

predicated on an allegation that individuals in the protected classes had been harmed

or discriminated against, which discrimination had also personally harmed the

bystander. None of the cases cited by the Commission to support its deviation from

Section 5(i)(1)’s language found that a bystander claim could be successfully

asserted in the absence of a finding of discrimination toward the targeted individual

or group. Rather, those cases treated the claims of discrimination against a targeted

individual or group as an element that the bystander had to prove in order for the

claim to proceed. As demonstrated by Clayton, a bystander claim will fail if the

asserted incident of discrimination against a protected person or group that caused

harm to the bystander is insufficient to state a cognizable claim. Accordingly,

Trafficante and the other federal cases cited by the Commission do not support its

39

conclusion that the harm suffered by the bystander is, in the absence of harm to the

individual within the protected class, itself, a discriminatory practice.

Instead, we find that the case sub judice is more like Erdman v. Nationwide

Insurance Company, 510 F. Supp. 2d 363, 367-68 (M.D. Pa. 2007), where the

employee’s claim under the Act was not based on unlawful discrimination by her

employer against an individual that was a member of a protected group identified

under Section 5(i)(1) of the Act, but on alleged discrimination directly against the

employee due to her association with her child who was disabled. The U.S. District

Court for the Middle District of Pennsylvania found that there was no direct

associational discrimination claim explicitly available to the individual employee

under the Act’s terms. Erdman, 510 F. Supp. 2d at 374-75. Here, the Commission

found discrimination based not on harm to a member of a protected group under

Section 5(i)(1), but solely on the harm to the non-Native American students. This is

sufficiently similar to the associational claim rejected in Erdman that we are

persuaded by the federal court’s determination in that case.

The Commission also argues its more expansive reading of Section 5(i)(1) is

supported by Section 12(a) of the Act because that section has been cited to expand

the scope of other provisions of the Act, particularly Section 5(d), 15 which addresses

retaliation. The Commission argues that although the plain language of Section 5(d)

“does not specifically protect those who request an accommodation from acts of

retaliation,” such claims have been recognized, using Section 12(a), as violations of

15

Section 5(d) prohibits “discriminat[ion] in any manner against any individual because

such individual has opposed any practice forbidden by this [A]ct, or because such individual has

made a charge, testified or assisted, in any manner, in any investigation, proceeding or hearing

under this [A]ct.” 43 P.S. § 955(d).

40

the Act based on the general principles announced in Shellenberger. (Final Op. and

Order at 47.) We disagree that these principles apply here.

In Shellenberger, the Third Circuit read the Americans with Disabilities Act

of 1990 16 (ADA) to allow a claim for retaliatory discharge based on the plaintiff

requesting accommodation even though the retaliation provision did not expressly

include such requests as a basis for a retaliation claim. 17 Shellenberger, 318 F.3d at

188. However, there are no allegations that the non-Native American students were

engaged in protected activity and were retaliated against; thus, this case offers little

guidance in resolving the present issue. Further, the issue of whether the

Commission can find discrimination beyond that which the legislature intended

to be discrimination is different from merely ensuring that engaging in activity

intended to be protected by the legislature is, in fact, protected as was the case in

Shellenberger. Therefore, we are not persuaded that Shellenberger supports the

Commission’s expansion of Section 5(i)(1) here.

In short, Section 5(i)(1)’s plain language provides that the “unlawful

discriminatory practice” required to establish a violation of the Act is linked to the

denial of a public accommodation (harm) to the person that is actually the target of

the discrimination based, inter alia, on that person’s protected characteristic, such

as race or ancestry. 43 P.S. § 955(i)(1). The Commission determined that the PHRC

did not meet its burden of proving that an unlawful discriminatory practice as

defined by the plain language of Section 5(i)(1) occurred here. The Commission

16

42 U.S.C. §§ 12101-12213.

17

The statutory provision at issue stated: “No person shall discriminate against any

individual because such individual has opposed any act or practice made unlawful by [the ADA]

or because such individual made a charge . . . under [the ADA].” Shellenberger, 318 F.3d at 188

(citing 42 U.S.C. § 12203(a) (2002)). This section provided protections that are substantially

similar to Section 5(d) of the Act.

41

instead, based on the evidence before it, found that any harm to Native American

students by the District’s actions was either speculative or not supported by the

evidence, and, therefore, could not support a finding of unlawful discrimination.

Although dismissing the claims of unlawful discrimination against Native

Americans, the Commission nonetheless, apparently conflictingly, held that the

discrimination of Native American students caused harm to non-Native American

students. (Final Op. and Order at 48.) However, the Commission cannot both

dismiss claims as unsubstantiated or speculative and then rely on those claims to find

harm to others. We emphasize that these findings were not challenged, and we are

bound by them. Although the Act is to be liberally interpreted, neither the

Commission nor this Court can ignore the plain language of Section 5(i)(1) and

expand unlawful discriminatory practices beyond those that were defined by the

legislature. Johnson, 235 A.3d at 1100. 18 In the absence of a finding that the District

engaged in unlawful discriminatory practices against Native American students

based on those students’ race/ancestry, the Commission exceeded its authority when

it found that the harm to non-Native American students constituted an unlawful

discriminatory practice under Section 5(i)(1).

IV. Conclusion

There can be no dispute that the Act is intended to be used to eliminate

unlawful discriminatory practices, as defined by Section 5(i)(1), within

Pennsylvania. The Commission’s authority is defined by the Act, and the Act’s plain

language may not be ignored in an effort, however laudable, to pursue its spirit.

Reviewing the Act’s plain language, the record, and the Commission’s Final

Opinion and Order, we agree with the Commission that it had jurisdiction over the

18

Because of our disposition, we do not address the District’s remaining issues.

42

District and that the claims raised were not barred by the statute of limitations. The

Commission’s holding that the District violated Section 5(i)(1) based on the

educational harm caused to non-Native American students was predicated on “[t]he

non-Native American student bystanders [being] impacted by the District’s

discrimination against Native Americans . . . .” (Final Op. and Order at 48

(emphasis added).) However, the Commission dismissed both claims alleging that

the District committed an unlawful discriminatory practice causing harm to Native

American students, on the basis that such harm was either speculative or not

supported by the evidence. That dismissal was not appealed and is not before us.

Because the Commission dismissed the claims of discrimination against Native

American students, the predicate under Section 5(i)(1) to sustain the claim for harm

to non-Native American students was not there. Therefore, the determination is not

supported by the Act’s plain language. Accordingly, the Commission’s Order is

reversed.

_____________________________________

RENÉE COHN JUBELIRER, Judge

43

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Neshaminy School District, :

Petitioner :

:

v. : No. 1765 C.D. 2019

:

Pennsylvania Human Relations :

Commission, :

Respondent :

ORDER

NOW, June 7, 2021, the Order of the Pennsylvania Human Relations

Commission, entered in the above-captioned matter, is REVERSED.

_____________________________________

RENÉE COHN JUBELIRER, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Neshaminy School District, :

Petitioner :

:

v. : No. 1765 C.D. 2019

: Argued: December 8, 2020

Pennsylvania Human Relations :

Commission, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

CONCURRING OPINION

BY JUDGE BROBSON FILED: June 7, 2021

A school district is not a “person” and thus the Pennsylvania Human Relations

Commission (Commission) lacks jurisdiction to adjudicate a complaint against a

school district under Section 5(i)(1) of the Pennsylvania Human Relations Act 1

(Act). Accordingly, while I agree with the majority’s decision to reverse the

Commission’s Order, concluding that Neshaminy School District (District) violated

this section of the Act, I respectfully disagree with its rationale and, therefore,

concur.

As the majority notes, Section 5(i)(1) of the Act provides, in relevant part:

It shall be an unlawful discriminatory practice . . .

....

1

Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 955(i)(1).

(i) For any person being the owner, lessee, proprietor, manager,

superintendent, agent or employe of any public accommodation, resort

or amusement to:

(1) Refuse, withhold from, or deny to any person because of

his race, color, sex, religious creed, ancestry, national origin or

handicap or disability, . . . either directly or indirectly, any of the

accommodations, advantages, facilities or privileges of such public

accommodation, resort or amusement.

(Emphasis added.) This section clearly provides for liability of persons who

discriminate with respect to public accommodations. The section does not hold the

public accommodation itself liable for the discriminatory act of a person.

Accordingly, whether a school district is a public accommodation does not answer

the relevant question of whether a school district is also a “person” that can be held

liable under Section 5(i)(1) of the Act.

Relevantly, the Act 2 defines several key terms. The Act defines “person” as

follows:

The term “person” includes one or more individuals,

partnerships, associations, organizations, corporations, legal

representatives, trustees in bankruptcy or receivers. It also includes,

but is not limited to, any owner, lessor, assignor, builder, manager,

broker, salesman, agent, employe, independent contractor, lending

institution and the Commonwealth of Pennsylvania, and all political

subdivisions, authorities, boards and commissions thereof.

Section 4(a) of the Act, 43 P.S. § 954(a) (emphasis added). Included in this list of

potentially liable persons are political subdivisions of the Commonwealth of

Pennsylvania. For statutory construction purposes, the default definition of

“political subdivision” expressly includes school districts. 3 The Act, however,

2

43 P.S. §§ 951-963.

3

Section 1991 of the Statutory Construction Act of 1972 defines “political subdivision”

as follows: “Any county, city, borough, incorporated town, township, school district, vocational

school district and county institution district.” 1 Pa. C.S. § 1991 (emphasis added). The definitions

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provides a more narrow definition of the term, which excludes school districts, and

thus takes primacy over the default definition: “[A]ny county, city, borough,

incorporated town or township of this Commonwealth.” Section 4(m) of the Act,

43 P.S. § 954(m). Nonetheless, when defining the word “employer” in the Act, the

General Assembly chose to include the term “school district” expressly in the

definition: “The term ‘employer’ includes the Commonwealth or any political

subdivision or board, department, commission or school district thereof . . . .”

Section 4(b) of the Act, 43 P.S. § 954(b) (emphasis added).

“The object of all interpretation and construction of statutes is to ascertain

and effectuate the intention of the General Assembly.” 1 Pa. C.S. § 1921(a). “The

clearest indication of legislative intent is generally the plain language of a statute.”

Walker v. Eleby, 842 A.2d 389, 400 (Pa. 2004). “When the words of a statute are

clear and free from all ambiguity, the letter of it is not to be disregarded under the

pretext of pursuing its spirit.” 1 Pa. C.S. § 1921(b). Only “[w]hen the words of the

statute are not explicit” may this Court resort to statutory construction. 1 Pa. C.S.

§ 1921(c). “A statute is ambiguous or unclear if its language is subject to two or

more reasonable interpretations.” Bethenergy Mines, Inc. v. Dep’t of Env’t Prot.,

676 A.2d 711, 715 (Pa. Cmwlth.), appeal denied, 685 A.2d 547 (Pa. 1996).

Moreover, “[e]very statute shall be construed, if possible, to give effect to all its

provisions.” 1 Pa. C.S. § 1921(a). It is presumed “[t]hat the General Assembly

intends the entire statute to be effective and certain.” 1 Pa. C.S. § 1922(2).

Moreover, where the General Assembly defines words in a statute, those definitions

in Section 1991 of the Statutory Construction Act of 1972 apply to any statute, like the Act,

“finally enacted on or after September 1, 1937, unless the context clearly indicates otherwise.” Id.

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are binding. Snyder Bros., Inc. v. Pa. Pub. Util. Comm’n, 198 A.3d 1056, 1071

(Pa. 2018), amended on reconsideration, 203 A.3d 964 (Pa. 2019).

Based on the foregoing, I conclude that the General Assembly consciously

and deliberately chose to exclude school districts from the definition of “person”

under Section 4(a) of the Act. This is clear because although the General Assembly

chose to include within the definition of that term “all political subdivisions,” it

further chose to define the term “political subdivision” more narrowly for purposes

of the Act by excluding school districts. It is obvious that this was a conscious

decision and not some mere omission or error in draftsmanship. That is evident in

the definition of “employer,” where the General Assembly expressly included within

the definition in the Act both political subdivisions and school districts.

While I would agree generally with the majority’s proposition that the General

Assembly’s use of the phrase “includes, but is not limited to” reflects an intent that

the list that follows is not exhaustive, the phrase should not be interpreted to sweep

within the list those entities—such as a school district—that are excluded from the

definition of one of the listed entities—political subdivision. Because the General

Assembly chose to include political subdivisions among the list of entities that would

qualify as a “person” under Section 4(a) of the Act but purposefully excluded school

districts from the definition of political subdivision, it would be contrary to

legislative intent for this Court to hold that a school district is among the unlisted

entities that fall within the definition of “person.” Indeed, given the narrow

definition of political subdivision in the Act, if the General Assembly had intended

to include school districts in the definition of person, it would have done so

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expressly, as it did in the definition of “employer”—i.e., by expressly listing both

political subdivision and school district. 4

Again, the issue here is not whether the school district is a public

accommodation—it is. The question is whether it is a “person” that can be held

liable under Section 5(i)(1) of the Act. For the reasons set forth above, it is not. To

be clear, this does not mean that discrimination in our schools is not within the scope

of the Act; it simply means that a school district, as an entity, cannot be held liable.

Moreover, my analysis of the definition of “person” does not insulate from liability

any person who is the “superintendent, agent, or employe[e]” of a school district

who engages in unlawful acts of discrimination. See Section 5(i)(1) of the Act.

Accordingly, unlike the majority, I would hold that the Commission erred in

exercising jurisdiction over a complaint against a school district under

Section 5(i)(1) of the Act and reverse the order of the Commission on this basis.

P. KEVIN BROBSON, Judge

4

Neither Pennsylvania Human Relations Commission v. Chester School District, 233 A.2d

290 (Pa. 1967), nor Chestnut Hill College v. Pennsylvania Human Relations Commission,

158 A.3d 251 (Pa. Cmwlth. 2017), addresses specifically the question of whether a school district

is a “person” under Section 4(a) of the Act. Accordingly, my analysis is not in conflict with the

precedent outlined in those opinions.

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