Washington Township Independent School District v. Pennsylvania State Board of Education

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Washington Township Independent :

School District, :

Petitioner :

:

v. : No. 2582 C.D. 2015

: Argued: December 14, 2016

Pennsylvania State Board of :

Education, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

OPINION BY JUDGE BROBSON FILED: January 20, 2017

The Washington Township Independent School District (WTISD)

petitions for review of an order of the Pennsylvania State Board of Education

(Board) that (1) disapproved the creation of WTISD and its transfer from the

Dover Area School District (Dover) to the Northern York County School District

(Northern York); and (2) accepted and adopted the report of the Special Committee

of the State Board of Education (Committee). Following the Board’s grant of

WTISD’s petition for reconsideration and the Board’s subsequent affirmation of its

earlier decision denying WTISD’s application for transfer, WTISD filed the

petition for review at issue. For the reasons set forth below, we vacate and remand

for further proceedings.1

I. BACKGROUND

The Public School Code of 1949 (School Code)2 provides a

mechanism by which a majority of taxpayers within any contiguous geographic

territory may petition the court of common pleas to establish their territory as an

independent school district for purposes of transferring that territory from its

current school district(s) to another already existing school district. The

administrative process for securing the transfer is a multi-step approval process

involving the court of common pleas, the Secretary of Education (Secretary), and

the Board. This Court has characterized “[t]he establishment of an independent

school district [as] procedurally unusual because it must be acted upon both by a

court of common pleas and by state agencies.” In re Petition for Formation of

Indep. Sch. Dist., 17 A.3d 977, 981 (Pa. Cmwlth. 2011) (“Riegelsville II”).

The initial procedure is outlined in Section 242.1(a) of the School

Code,3 which, in relevant part, provides:

A majority of the taxable inhabitants of any

contiguous territory in any school district or school

districts, . . . may present their petition to the court of

common pleas of the county in which each contiguous

territory, or a greater part thereof, is situated, asking that

the territory be established as an independent district for

the sole purpose of transfer to an adjacent school district

contiguous thereto. . . . Such petitions shall set forth a

1

Intervenor Northern York joined in the Board’s brief.

2

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

3

Added by the Act of June 23, 1965, P.L. 139, 24 P.S. § 2-242.1(a).

2

proper description of the boundaries of the territory to be

included in such proposed independent district, and the

reasons of the petitioners for requesting such transfer to

another school district and the name of the district into

which its territory is proposed to be placed.

Thereafter, Section 242.1(a) mandates that the court of common pleas hold a

hearing on a petition “of which hearing the school district or districts out of whose

territory such proposed independent district is to be taken and the school district

into which the territory is proposed to be assigned, shall each have ten[-]days

notice.” Section 242.1(a) of the School Code.

In ruling on a petition, the court’s role is strictly procedural, and it is

not to inquire into petitioner’s alleged reasons for the proposed transfer or rule on

the merits of those reasons. In re Indep. Sch. Dist., 74 A.3d 389, 391 (Pa.

Cmwlth. 2013), appeal denied, 87 A.3d 321 (Pa. 2014) (Jefferson Township). At

the mandatory hearing, the common pleas court is to determine four things: (1) the

precise boundaries of the proposed district; (2) confirmation that a majority of

taxable inhabitants in the contiguous territory have signed the petition;

(3) confirmation that the petition includes petitioner’s reasons for the transfer; and

(4) confirmation that the petition includes the name of the school district into

which the territory is proposed to be transferred. Id. at 391.

In addition, before approving the petition, the common pleas court

must refer the petition to the Secretary for a determination of “the merits of the

petition . . . from an educational standpoint.” Section 242.1(a) of the School Code.

The common pleas court may not approve a petition “unless approved” by the

Secretary. Id. If the Secretary determines that the petition has merit, and the

common pleas court determines that the petition meets the technical requirements

above, the common pleas court must order the establishment of an independent

3

school district. In its order, or decree, the common pleas court must include a

financial determination about the impact of the proposed transfer on the

“receiving” and “losing” school districts. Id.

Once the common pleas court and Secretary approve the petition, the

matter moves to the Board under Section 292.1 of the School Code,4 which

provides:

When an independent district is created by the

court of common pleas for purposes of transfer from one

school district to another, the court shall submit to the

State Board of Education its decree creating such district.

Such decree shall be considered an application for the

assignment of said district to the designated

administrative unit of the approved county plan.

(Emphasis added.) The procedure for review and approval by the Board is set

forth in Section 293.1 of the School Code,5 which provides:

When a court decree is received creating an

independent district for transfer purposes, the State Board

of Education shall place such item on its agenda and

either approve or disapprove the creation and transfer. If

approval is given, the [B]oard shall direct the Council of

Basic Education to make the necessary changes [to] the

county plan. If disapproved, the [B]oard shall state its

reasons for such disapproval and the independent district

shall be provided a hearing if it so desires.

In the present case, the Washington Township Education Coalition

(WTEC) filed a July 2012 petition with the Court of Common Pleas of York

County, requesting a transfer from Dover to Northern York and enumerating its

reasons for asserting that the transfer had educational merit. In summary, WTEC’s

4

Added by the Act of June 23, 1965, P.L. 139, as amended, 24 P.S. § 2-292.1.

5

Added by the Act of June 23, 1965, P.L. 139, as amended, 24 P.S. § 2-293.1.

4

alleged reasons were as follows: (1) Northern York students have better

educational outcomes than Dover students; (2) Northern York is better managed;

(3) an elementary school closure in Dover resulted in Washington Township

students having to travel farther to school while living closer to schools that they

would attend if they were part of Northern York; (4) Dover has a higher rate of

in-school crime and arrests than Northern York; and (5) school taxes in Northern

York are lower, more stable, and more fairly applied than those in Dover.

(WTEC’s July 16, 2012, Petition to Establish Independent School District for

Transfer at 3-4; Certified Record (C.R.), Vol. 1 at 4a-5a.) After confirming that

1,406 of Washington Township’s 1,929 taxable inhabitants had signed the petition,

that the petition properly described the territory, and that it set forth WTEC’s

reasons for the requested transfer, the court referred the petition to the Secretary.

In evaluating the merits of the petition from an educational standpoint,

the Secretary6 considered the potential impact of the transfer on the Washington

Township students, the students who would remain in Dover, and the students in

Northern York. After comparing the respective schools’ performances on certain

educational metrics (SAT scores, proficiency in math and reading, graduation

rates, drop-out rates, truancy rates, and in-school arrest rates), the Secretary

concluded that Northern York outperformed Dover on each of the metrics.

Ultimately determining that the proposed transfer would have a positive

educational impact on the Washington Township students and that the parties had

not presented sufficient evidence to demonstrate that the transfer would have a

6

In July 2014, the Acting Secretary of Education was Dr. Carolyn Dumaresq.

(January 14, 2015, Board Minutes at 1; C.R., Vol. 3 at 1702a.)

5

negative impact on the students who would remain in Dover or the students in

Northern York, the Secretary deemed the petition meritorious from an educational

standpoint. Accordingly, upon receipt of the Secretary’s decision, the common

pleas court entered an order, dated November 10, 2014, creating WTISD and

transmitted the matter to the Board for review pursuant to Sections 292.1 and 293.1

of the School Code.

Upon receiving the common pleas court’s decree, the Board published

public notice of its receipt of the petition for transfer and advised the public of the

opportunity to submit written petitions to intervene, notices of intervention or

protest, and written requests for a public hearing on the petition. In response,

Dover submitted a protest to the petition and requested a public hearing. In

addition, Northern York, Dover Area Education Association,7 and Keep Us in

Dover Schools (KIDS),8 submitted petitions to intervene to the Board. While

Northern York remained neutral, both KIDS and the Dover Area Education

Association aligned with Dover to oppose the transfer.

In January 2015, the Chairman of the Board, by resolution, appointed

the Committee to conduct appropriate proceedings under the General Rules of

Administrative Practice and Procedure (GRAPP)9 and, upon completion, to make a

recommendation as to whether the Board should approve or disapprove the

creation and transfer of WTISD pursuant to Section 293.1 of the School Code.

7

The Dover Area Education Association is the labor organization representing Dover’s

professional staff.

8

KIDS is an unincorporated association comprised of members of the Dover community.

9

1 Pa. Code §§ 31.1 – 35.251.

6

Three Board members served on the Committee.10 Before rendering its

recommendation, the Committee took care of preliminary matters such as granting

Northern York’s petition to intervene and authorizing the limited participation of

the Dover Area Education Association and KIDS.11 In addition, the Committee

and the parties engaged in a series of pre-hearing conference calls for purposes of

creating a timeline and requirements for pre-hearing submissions. In May 2015,

the Committee met and formally adopted the pre-hearing record, which consisted

of documents stipulated to by the parties and the Secretary’s findings of fact and

determination of educational merit. Finally, the Committee held a multi-day

hearing in June 2015.

At the hearing: (1) WTISD presented evidence in favor of the

transfer; (2) Dover, Dover Area Education Association, and KIDS presented

evidence against the transfer; and (3) Northern York presented a brief statement

regarding its ability to accommodate the Washington Township students. After the

evidentiary portion of the proceedings, members of the public were afforded the

opportunity for public comment. In September 2015, the Committee unanimously

recommended that the Board disapprove the petition for the creation of WTISD

and its transfer from Dover to Northern York. Following an affirmative vote of the

majority of its members, the Board adopted and accepted the Committee’s

recommendation and disapproved WTISD’s petition. WTISD then filed a petition

10

June 3, 2015, Hearing, Notes of Testimony (N.T.) at 1; C.R., Vol. 3 at 1733a.

11

Section 35.31(b) of GRAPP, 1 Pa. Code § 35.31(b), pertains to notice and actions on

petitions to intervene.

7

for reconsideration, and thereafter, by final determination dated

November 19, 2015, the Board confirmed its earlier decision.

By way of summary, the Board in disapproving the petition “did not

find one district’s educational program to be superior to the other’s for the vast

majority of the district’s students.” (Board’s November 19, 2015, Decision on

WTISD’s Petition for Reconsideration at 10; C.R., Vol. 6 at 3635a.) Specifically,

in deeming certain portions of the record more relevant and important to its

decision, the Board in reviewing standardized test scores chose to place more

emphasis on the School Performance Profile than on aggregate state assessment

results alone. (Id. at 9-10; C.R., Vol. 6 at 3634a-35a.) In addition, the Board took

into consideration “the variety of coursework available to students in each district,

including foreign language and Advanced Placement offerings, and honors and

technology education courses; opportunities for students to pursue postsecondary

level coursework while in high school, and articulation agreements with

postsecondary institutions; the delivery of Career and Technical Education;

graduation rates; and drop-out rates.” (Id. at 10; C.R., Vol. 6 at 3635a.) It also

considered, inter alia, data that WTISD supplied depicting student/teacher ratios in

the two districts. The Board, however, “did not find the differential between these

measures to be significant in informing its decision.” (Id.; C.R., Vol. 6 at 3635a.)

On appeal, WTISD has raised ten issues. For purposes of discussion

and disposition, we have reordered, condensed and combined the cognizable issues

as follows: (1) where the districts did not object to the Secretary’s determination

of educational merit, whether the Board was bound by that determination,

obligated to consider the petition using the educational merit standard, and

constrained to use the same measures of comparison that the Secretary deemed

8

relevant;12 (2) whether the Board erred in appointing the Committee to conduct

appropriate proceedings and, upon completion, to make a recommendation as to

whether the Board should approve or disapprove the proposed creation and

transfer; (3) whether the Board in rendering its decision actually reviewed the

record in accordance with due process principles; (4) whether the Board erred in

treating WTISD’s request for a post-decisional evidentiary hearing before the full

Board as a petition for reconsideration; and (5) whether the Board’s fact-findings

12

The Board maintains that WTISD waived this issue, inter alia, noting that WTISD’s

counsel in his closing argument agreed that the Board was not bound by the Secretary’s

determination and further asserting that counsel did not raise the issue until he made the

following contention in WTISD’s petition for reconsideration: “The Board is bound by

secretary’s findings, both by the terms of the statute and by the failure of other parties to appeal.”

(WTISD’s October 13, 2015, Petition for Reconsideration at 2; C.R., Vol. 6 at 3596a.) After

review, we reject the Board’s contention that WTISD waived this issue.

While it is true that counsel for WTISD agreed that the Board was not bound by the

Secretary’s determination, his complete statement in that regard was as follows: “You are not

bound by the Secretary, but you have to give her deference, and find Dover will not suffer and, in

fact, will suffer more if you don’t grant the petition.” (June 4, 2015, Hearing, N.T. at 402; C.R.,

Vol. 3 at 2134a (emphasis added).) We conclude, therefore, that WTISD preserved the issue on

appeal. In so determining, we note that review of this issue provides us with the opportunity to

elucidate the respective roles of the Secretary and the Board in this “very important matter of

how school district lines are drawn.” Riegelsville II, 17 A.3d at 990; see also Indep. Sch. Dist.

Comprised of the W. Portion of Hamlin and Sergeant Twps., 417 A.2d 269, 272 (Pa.

Cmwlth. 1980) (Hamlin II) (addressing procedural issues that court might not have been strictly

obliged to consider, noting that procedure for determination of creation and transfer of

independent school district at issue had been in dispute since before 1975 and citing Section

703(a) of the Administrative Agency Law (AAL), 2 Pa. C.S. § 703(a), providing, in pertinent

part, that “[a] party who proceeded before a Commonwealth agency under the terms of a

particular statute shall not be precluded from questioning the validity of the statute in the appeal,

but such party may not raise upon appeal any other question not raised before the agency . . .

unless allowed by the court upon due cause shown.”)

9

are supported by substantial evidence and whether it made any evidentiary or

procedural errors.13

II. DISCUSSION

We first address WTISD’s contention that the Board improperly

disregarded and/or deviated from the Secretary’s determination of educational

merit, erred in not considering the petition pursuant to that standard, and erred in

not deeming relevant the same measures of comparison that the Secretary accorded

weight. In clarifying the respective roles of the Secretary and the Board in this

process, we are guided by the plain language of the pertinent provisions of the

School Code and how they interplay to shape the respective roles of these

designated educational authorities. In interpreting the statutes, we are mindful of

the basic tenets of statutory construction that, where statutory language is

unambiguous, “the letter of it is not to be disregarded under the pretext of pursuing

its spirit.” Section 1921 of the Statutory Construction Act of 1972, 1 Pa. C.S.

§ 1921. In addition, a statutory provision shall not be construed so as to render an

absurd or unreasonable result or inconsistently with the plain and ordinary meaning

of the words at issue. Phillips v. Zoning Hearing Bd. of Montour Twp.,

776 A.2d 341, 343 (Pa. Cmwlth. 2001). When interpreting a statute, we must be

mindful of both what the statute provides and what it does not provide. Johnson v.

Lansdale Borough, 146 A.3d 696, 711 (Pa. 2016).

13

Section 704 of the AAL, 2 Pa. C.S. § 704, which governs Commonwealth agency

actions, restricts our review to determining whether constitutional rights have been violated,

whether an error of law has been committed, whether the proceedings relating to practice and

procedure before an agency have conformed to the Law and whether the necessary findings of

fact are supported by substantial evidence.

10

We turn first to the Secretary’s role. Section 242.1(a) of the School

Code provides, in pertinent part, as follows:

In all cases where an independent district is proposed for

transfer from one school district to another, the merits of

the petition for its creation, from an educational

standpoint, shall be passed upon by the [Secretary] and

the petition shall not be granted by the court unless

approved by him.

Section 242.1(a) of the School Code further provides that “[t]he court of common

pleas shall secure the reaction from the [Secretary] upon receipt of the petition

properly filed.” Even though the School Code neither defines the phrase “merits

from an educational standpoint” nor any of the component words therein, the

phrase is not vague, is not a technical term, and must be given its ordinary

meaning. Riegelsville II, 17 A.3d at 985 n.10. Specifically regarding the scope

and meaning of the Secretary’s statutory authority to “pass” on the merits, we

have held that his or her authority is not open-ended but instead restricted to the

substantive provisions of the School Code. Id. at 991. Further, analogizing the

Secretary’s role to a veto power, id. at 982, we have held: “[W]hen the Secretary

exercises his [or her] discretion to determine whether a proposed transfer has

‘merit from an educational standpoint,’ he [or she] must be guided by the policy

choices made by the legislature in the [School Code] and not by his [or her] own

personal sense of what constitutes good education policy.” Id. at 991. This

“manifest restriction” on the Secretary’s power is “necessary lest the statute

violate the proscription against delegating legislative power to an administrative

agency.” Id. at 988-89.

Furthermore, as we previously observed, if the Secretary does not

approve the petition, then the common pleas court must deny it and the statutory

process ends. If the Secretary approves the petition, then the common pleas court

11

must issue a decree establishing an independent school district for transfer

purposes and transmit the same to the Board for the final step in the process. Id. at

981-82.

We now turn to the parameters of the Board’s role. The General

Assembly first added Sections 242.1, 292.1, and 293.1 to the School Code by

Sections 1, 2, and 3, respectively, of the Act of June 23, 1965, P.L. 139. During

this time, the Board was in the process of performing its statutory duties under the

School Reorganization Act of 1963,14 which, inter alia, added subarticle (i) titled

“Reorganization” to Article II of the School Code.15 The General Assembly

enacted the School Reorganization Act of 1963 because it recognized that the

existing system of more than 2,000 school districts in the Commonwealth was

“incapable of providing adequate education and appropriate training for all of the

children of the Commonwealth.” Section 290 of the School Code; see also

Chartiers Valley Joint Schs. v. Cnty. Bd. of Sch. Dirs. of Allegheny Cnty.,

211 A.2d 487 (Pa. 1965) (discussing purpose of School Reorganization Act

of 1963 and upholding its constitutionality). In this regard, Section 290 of the

School Code further provides:

It is hereby declared to be the purpose and intention of

the General Assembly to establish the procedures and

provide for the standards and criteria under which school

directors and district administrators and county boards of

school directors and county administrators shall have the

power and bear the duty of determining the appropriate

administrative units to be created in each county to carry

14

Act of August 8, 1963, P.L. 564.

15

Subarticle (i) of Article II is set forth at Sections 290-298 of the School Code, as

amended, 24 P.S. §§ 2-290 to 2-298.

12

out the responsibilities shared by them and the General

Assembly, of educating and training each child within his

capacity to the extent demanded by the immediate

requirements of growth and strengthening of this

Commonwealth and nation. Only where such local

officials fail to act, or act arbitrarily outside of the

standards and criteria provided for in the sections

following, shall the Commonwealth through its duly

authorized agencies and officials act to insure compliance

with law within the powers set forth below and as

restricted therein. The improvements in the educational

system hereby obtained are not to be construed as a final

resolution of organizational problems. Local school

officials as agents of the General Assembly are directed

to continually review organizational patterns and adopt

without delay all changes which will accelerate the

progress of public education. It is further declared to be

the purpose and intention of the General Assembly that

the above may be used in construing and arriving at

legislative intent with respect to the provisions of this

subdivision.

(Emphasis added.) According to the Pennsylvania Supreme Court, “the primary

legislative objective” was “reorganization in the direction of fewer and larger

units.” Chartiers Valley, 211 A.2d at 494.16

To accomplish the purposes and goals of the School Reorganization

Act of 1963, the General Assembly granted the Board certain powers and duties.

First, the General Assembly mandated that the Board, by no later than

July 1, 1965, develop statewide standards and procedures to evaluate objectively

the performance (i.e., adequacy and efficiency) of the educational programs of

each public school in the Commonwealth. Section 290.1 of the School Code.

Second, the General Assembly mandated that the Board, within 90 days of the

16

Today, there are 500 public school districts in Pennsylvania.

13

effective date of the act,17 develop standards for approval of administrative units,

which, once approved, would become school districts. Sections 291, 296, 297 of

the School Code. In establishing these standards, the General Assembly required

the Board to consider “topography, pupil population, community characteristics,

transportation of pupils, use of existing school buildings, existing administrative

units, potential population changes and the capability of providing a

comprehensive program of education.” Section 291 of the School Code.

The School Reorganization Act of 1963 required county boards of

school directors to prepare plans of organization for administrative units that

complied with the Board’s standards for approval, adopted pursuant to

Section 291 of the School Code, on or before July 1, 1964, and to submit the same

to what is now called the Department of Education. Section 292 of the School

Code. The act provided for a review process for those county plans, which

involved review by both the Department of Education and the Council of Basic

Education (Council), but vested approval authority in the Council. Section 293 of

the School Code. School districts aggrieved by a plan or organization approved by

the Council could appeal that determination to the Board. Section 295 of the

School Code.

In 1968, the General Assembly passed the School District

Reorganization Act of 1968, Act of July 8, 1968, P.L. 299, 24 P.S. §§ 2400.1-.10,

also referred to as Act 150. The General Assembly passed Act 150, a supplement

to the School Reorganization Act of 1963, to facilitate completion of the orderly

17

Section 17 of the School Reorganization Act of 1963 provided that the act was

effective immediately upon passage.

14

reorganization of school districts required under the School Reorganization Act of

1963. See Appeal of Borough of Cambridge Springs Sch. Dist., 275 A.2d 840 (Pa.

Super. 1971) (en banc). The provisions of Act 150 are substantially similar to

those in the School Reorganization Act of 1963, with one noteworthy change. In

passing Act 150, the General Assembly removed the Council from the process,

substituting the Board as the body with review and approval authority over plans

for the organization of school districts. Section 3 of Act 150, 24 P.S. § 2400.3.

As noted above, in 1965 the General Assembly amended the School

Code to add Sections 292.1 and 293.1 in order to provide additional authority to

the Board with respect to the reorganization of school districts. These amendments

to the School Code empower the Board to either “approve or disapprove the

creation and transfer” of an independent school district. Section 293.1 of the

School Code. Neither Section 292.1 nor 293.1 of the School Code set forth

standards or factors that the Board should consider in this step of the approval

process. As we recognized in Riegelsville II with respect to the Secretary’s

authority, however, the Board’s authority is not open-ended, but instead restricted

to the substantive provisions of the School Code, as supplemented by Act 150.

See Riegelsville II, 17 A.3d at 991. Sections 292.1 and 293.1 of the School Code

are part of a subdivision of the School Code dealing solely with school district

reorganizations. As noted above, the General Assembly expressly stated in

Section 290 of the School Code that the stated purposes and intentions of the

General Assembly in passing the School Reorganization Act of 1963 “may be used

in construing and arriving at legislative intent with respect to the provisions of this

subdivision.” Moreover, in determining the scope of the Board’s approval

authority, we consider the other portions of the School Code relating to the Board’s

15

authority over the organization and reorganization of school districts. 1 Pa. C.S.

§ 1932 (providing that statutes and part of statutes relating to same things shall be

construed together, if possible).

With this background and guidance, we conclude that the Board’s

authority under Section 293.1 of the School Code derives from and relates to the

Board’s authority to set standards for the approval of the organization of school

districts in the Commonwealth under Section 292 of the School Code. The entirety

of the “reorganization” subdivision of the School Code, as supplemented by

Act 150, is devoted to providing procedures and standards for the creation of

school districts. Today, we presume that Pennsylvania’s existing 500 school

districts are subject to these standards.

When it receives the trial court’s decision creating an independent

school district for transfer purposes, the Board is required to treat that decision as

an application for the assignment of that independent school district to an existing

school district. Section 292.1 of the School Code. In other words, the application

is a request to the Board to redraw school district lines—i.e., to amend an existing

plan of organization. In evaluating that request, the Board is constrained to apply

the standards for the creation and organization of school districts, those being the

standards that the General Assembly directed the Board to develop in Section 291

of the School Code and Section 1 of Act 150. Both sections provide:

The State Board of Education . . . shall adopt

standards for approval of administrative units . . . taking

into [account/consideration] the following factors:

topography, pupil population, community characteristics,

transportation of pupils, use of existing school buildings,

existing administrative units, potential population

changes and the capability of providing a comprehensive

program of education.

16

Section 1 of Act 150; Section 291 of the School Code. The Board must also

consider the following directive of the General Assembly, also found in both the

School Code and Act 150:

[N]o plan of organization of administrative units shall be

approved in which any proposed school district contains

a pupil population of less than four thousand (4,000),

unless when factors of topography, pupil population,

community characteristics, transportation of pupils, use

of existing school buildings, existing administrative

units, potential population changes and the capability of

providing a comprehensive program of education are

considered by the [Board] as requiring the approval of a

plan of organization of administrative units in which one

or more of the proposed school districts contains a pupil

population of less than four thousand (4,000).

Section 3 of Act 150; Section 293(a) of the School Code.

The Board’s scope of review under Section 293.1 of the School Code

must be distinguished from the Secretary’s “educational merits” review under

Section 242.1 of the School Code. Under the latter, the Secretary is to evaluate

only the educational merit of the petition to create an independent school district

for transfer purposes. Under Section 293.1 of the School Code, and based on the

standards set forth above, the Board is reviewing not the petition filed and

approved by the Secretary and the common pleas court, but an application for

assignment of the newly-created independent school district to the designated

receiving school district, as set forth in the common pleas court’s decree. It must

look at the proposed amendment to the organizational plan and determine whether

the assignment of the newly-created independent school district to the receiving

district would violate the adopted Board standards or express statutory standards

that govern the organization of school districts. If allowing the assignment would

not violate these standards, then the Board should approve the amendment “and

17

direct the Council . . . to make the necessary changes [to] the county plan.”

Section 293.1 of the School Code. If approval of the application would be contrary

to these standards, then the Board should deny the application.

In short, the Board’s review is the third and final review in a

three-part process to seek approval for the creation and transfer of an independent

school district to another existing school district. Each step is an independent step,

as failure to secure any one of the approvals from the common pleas court, the

Secretary, and Board is fatal and would constitute a final order for purposes of

appellate court review. See Rieglesville II, 17 A.3d at 980 (noting jurisdiction

under the AAL, 2 Pa. C.S. §§ 501-508, 701-704, to hear appeal from trial court

denial of petition based on negative educational merit determination by

Secretary).18 The common pleas court reviews the petition for completeness. The

Secretary reviews the petition for educational merit. The Board reviews the

common pleas court’s decree as an application in order to determine whether

assignment of the newly-created independent school district to the receiving

district would violate standards for the organization of school districts adopted by

the Board and established by statute.

Turning to the Board’s decision on appeal, it is clear from reading

both the initial written decision (September 17, 2015) and the written decision on

18

The Board notes that in Riegelsville II, this Court characterized the power of the

Secretary as “restricted” when compared to the Board’s power. See Riegelsville II, 17 A.3d

at 988. In doing so, the Court only pointed out, as set forth above, that the sole factor that the

Secretary may consider when reviewing a petition under Section 242.1 of the School Code was

educational merit, while the Board’s authority to supervise the reorganization of school districts

was broader. We did not, however, define in Riegelsville II the outward limits of the Board’s

authority. That issue was not before the Court in Riegelsville II, as it is here.

18

reconsideration (November 19, 2015) that the Board was operating under the false

impression that its review in this matter was broad and virtually unlimited. The

Board cites to no standards governing its review in either written decision. The

Board’s scope and standard of review should have been confined to determining

whether assignment of WTISD to Northern York would result in a reorganization

of school districts that violated statutory and Board-promulgated standards.

Because the Board did not so confine its review, we must vacate the Board’s

decision and remand the matter to the Board for review and reconsideration under

the proper scope and standard of review.19

WTISD’s remaining issues on appeal relate to the process that the

Board used in reviewing the application for assignment and alleged errors during

the hearing below. Because of our decision to vacate and remand the Board’s

decision in this matter due to the Board’s failure to adhere to the proper scope and

standard of review, on remand the Board’s process should begin anew.

Accordingly, we need not address WTISD’s remaining issues on appeal.

Nonetheless, on remand, we instruct the Board to adhere to the statutory process

set forth by the General Assembly.

19

We acknowledge that there could be some overlap between the Secretary’s educational

merits review of WTEC’s petition and the Board’s review of the application for assignment of

WTISD to Northern York, considering the Board’s mandate to consider “the capability of

providing a comprehensive program of education” in setting its standards for the organization of

school districts. Section 291 of the School Code. Until the Board conducts a proper review of

the application and issues an adjudication on grounds of disapproval, if any, concerns over

conflicts or inconsistencies between the Secretary’s decision and the Board’s decision are

speculative.

19

Specifically, on remand, the Board is directed to treat the common

pleas court’s November 10, 2014 “Order Establishing Independent School District

for Purposes of Transfer Pursuant to 24 P.S. [§] 2-242.1” as an application for the

assignment of WTISD to Northern York. Section 292.1 of the School Code.

The Board shall place this item on the agenda for its next meeting, at which the

Board must either vote to approve or disapprove the application. Section 293.1 of

the School Code. As noted above, in rendering this preliminary decision, the

Board must adhere to the proper scope and standard of review. If approved, the

Board must direct the Council to make appropriate revisions to the school district

lines. Id. If disapproved, the Board must give its reasons for the disapproval. Id.

Thereafter, if requested by WTISD, the Board must hold a hearing confined to its

reasons for disapproval and thereafter issue an adjudication that comports with the

AAL.

Accordingly, we vacate and remand for further proceedings.

P. KEVIN BROBSON, Judge

Judge Cohn Jubelirer did not participate in the decision of this case.

20

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Washington Township Independent :

School District, :

Petitioner :

:

v. : No. 2582 C.D. 2015

:

Pennsylvania State Board of :

Education, :

Respondent :

ORDER

AND NOW, this 20th day of January, 2017, the final order of the

Pennsylvania State Board of Education is hereby VACATED and this matter is

remanded to the Board for further proceedings consistent with the accompanying

opinion.

Jurisdiction relinquished.

P. KEVIN BROBSON, Judge