Washington Twp. Independent S.D. v. PA State Bd. of Ed.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Washington Township Independent :

School District, :

Petitioner :

:

v. : No. 142 C.D. 2019

: Argued: December 12, 2019

Pennsylvania State Board of Education, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE BROBSON FILED: June 4, 2020

I. INTRODUCTION

Following our remand order in Washington Township Independent School

District v. Pennsylvania State Board of Education, 153 A.3d 1177

(Pa. Cmwlth. 2017) (WTISD I) (en banc), the Pennsylvania State Board of Education

(Board) disapproved the application of Washington Township Independent School

District (WTISD) for assignment from Dover Area School District (Dover SD) to

adjacent Northern York County School District (Northern York SD).1 WTISD

petitions for review of the Board’s adjudication. For the reasons set forth below, we

will reverse and remand.

1

In WTISD I, this Court vacated the Board’s November 19, 2015 Order, which, like the

current decision on appeal, disapproved the creation of WTISD and its transfer from Dover SD to

Northern York SD. We remanded with instructions that the Board follow certain administrative

procedures and confine its review of the application to the standards applicable to the organization

of school districts within the Commonwealth.

II. BACKGROUND

Washington Township is located in the northwest corner of York County,

along York County’s western border with Adams County. In York County,

Washington Township borders Franklin Township to the northwest, Carroll

Township to the north, Warrington Township to the northeast, Dover Township to

the southeast, and Paradise Township to the south. Franklin, Carroll, and

Warrington Townships lie in Northern York SD, along with Monaghan Township.

Dover SD includes only Washington and Dover Townships.

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

which a majority of taxpayers within a municipality may petition the court of

common pleas to establish the municipality as an independent school district for the

2

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

2

sole purpose of transferring the municipality from its current school district to an

adjacent contiguous school district. The three-step process involves the court of

common pleas, the Secretary of Education (Secretary), and the Board. In July 2012,

the Washington Township Education Coalition (WTEC) filed a petition with the

Court of Common Pleas of York County (common pleas court), requesting a transfer

of Washington Township from Dover SD to Northern York SD and enumerating its

reasons for asserting that the transfer had educational merit. After conducting a

hearing and confirming that 1,406 of Washington Township’s 1,929 taxable

inhabitants (approximately 73%) had signed the petition, that the petition properly

described the territory, and that the petition set forth WTEC’s reasons for the

requested transfer, the common pleas court referred the petition to the Secretary for

her educational merits review.3

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

Secretary4 considered the potential impact of the transfer on the Washington

3

The initial procedure before a court of common pleas is outlined in Section 242.1(a) of

the School Code, added by the Act of June 23, 1965, P.L. 139, 24 P.S. § 2-242.1(a). As we

explained in WTISD I:

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. . . .

[B]efore 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. . . . 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 school district.

WTISD I, 153 A.3d at 1179-80.

4

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

Record (C.R.) Item No. 3.) Secretary Dumaresq delegated the matter to the Acting Deputy

3

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

in Northern York SD. 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 SD outperformed Dover SD 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 negative impact on

the students who would remain in Dover SD or the students in Northern York SD,

the Secretary deemed the petition meritorious from an educational standpoint.

The common pleas court thereafter entered an order, dated

November 10, 2014, creating WTISD and transmitting the matter to the Board for

review pursuant to Sections 292.1 and 293.1 of the School Code, 24 P.S. §§ 2-292.1,

2-293.1.5 A committee of the Board held a multi-day hearing in June 2015.

Secretary for the Office of Elementary and Secondary Education to prepare a pre-adjudication

determination. The Deputy Secretary issued her determination on July 2, 2014. By letter dated

August 7, 2014, Secretary Dumaresq notified the common pleas court that no party appealed the

pre-adjudication determination, as provided in Section 35.20 of the General Rules of

Administrative Practice and Procedure, 1 Pa. Code § 35.20 (“Actions taken by a subordinate

officer under authority delegated by the agency head may be appealed to the agency head by filing

a petition within 10 days after service of notice of the action.”). Accordingly, Secretary Dumaresq

informed the common pleas court that the pre-adjudication determination became the final

adjudication in the matter, and she relinquished jurisdiction to the common pleas court.

5

Following approval of the petition by the common pleas court and the Secretary, the

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

4

Ultimately, the committee recommended that the Board disapprove the petition for

the creation of WTISD and its transfer from Dover SD to Northern York SD.

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 petitioned this Court for review, raising a multitude of issues,

including whether 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 considering this issue, we

examined the respective roles of the Secretary6 and the Board in the context of

assignment of said district to the designated administrative unit of

the approved county plan.

(Emphasis added.)

6

The Secretary’s role is set forth in Section 242.1(a) of the School Code, which provides,

in pertinent part:

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.

We observed that the Secretary’s “authority is not open-ended but instead restricted to the

substantive provisions of the School Code.” WTISD I, 153 A.3d at 1184 (citing In re Petition for

Formation of Indep. Sch. Dist., 17 A.3d 977, 991 (Pa. Cmwlth. 2011) (Riegelsville II)). Further,

analogizing the Secretary’s role to a veto power, we held in Riegelsville II:

[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.

5

independent school districts for transfer purposes, beginning with Article II,

Subarticle (i) of the School Code,7 which is commonly referred to as the School

Reorganization Act of 1963. As to the Board’s role, we wrote:

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.[8] Second, the General Assembly

mandated that the Board, within 90 days of the effective

date of the act, develop standards for approval of

administrative units, which, once approved, would

become school districts. Sections 291,[9] 296,[10] 297[11] of

Riegelsville II, 17 A.3d 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.’” WTISD I, 153 A.3d at 1184 (quoting Riegelsville II, 17 A.3d at 991).

7

Added by the Act of August 8, 1963, P.L. 564, 24 P.S. §§ 2-290 to -298. “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.’”

WTISD I, 153 A.3d at 1185 (quoting Section 290 of the School Code, 24 P.S. § 2-290). “[T]he

primary legislative objective” of the School Reorganization Act of 1963 was “reorganization in

the direction of fewer and larger units.” Chartiers Valley Joint Schs. v. Cty. Bd. of Sch. Dirs. of

Allegheny Cty., 211 A.2d 487, 494 (Pa. 1965) (discussing purpose of School Reorganization Act

of 1963 and upholding its constitutionality). The General Assembly added Sections 242.1, 292.1,

and 293.1 to the School Code through the Act of June 23, 1965, P.L. 139, “in order to provide

additional authority to the Board with respect to the reorganization of school districts.” WTISD I,

153 A.3d at 1186. “During this time, the Board was in the process of performing its statutory

duties under the School Reorganization Act of 1963 . . . .” Id. at 1184-85.

8

24 P.S. § 2-290.1.

9

24 P.S. § 2-291.

10

24 P.S. § 2-296.

11

24 P.S. § 2-297.

6

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.

WTISD I, 153 A.3d at 1185-86 (emphasis and footnotes added) (footnote omitted).

As to the Board’s role, specifically as it relates to the General Assembly’s enactment

of Sections 292.1 and 293.1 of the School Code, we observed:

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.[12]

WTISD I, 153 A.3d at 1186 (emphasis and footnote added) (citation omitted).

Having examined the statutory provisions, we described the Board’s review

as follows:

[W]e 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

12

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 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).

7

Commonwealth under Section 292 of the School Code.[13]

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.

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 [Section 293(a) of]

the School Code[14] and [Section 3 of] Act 150:

[N]o plan of organization of administrative

units shall be approved in which any

proposed school district contains a pupil

13

24 P.S. § 2-292.

14

24 P.S. § 2-293(a).

8

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 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

9

existing school district. . . . 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.

WTISD I, 153 A.3d at 1186-88 (emphasis added and in original) (footnote omitted).

As to the Board’s initial decision disapproving the creation and transfer of

WTISD, we concluded:

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

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 [SD] 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.

Id. at 1188 (emphasis added) (footnote omitted). In doing so, “[w]e acknowledge[d]

that there could be some overlap between the Secretary’s educational merits review

. . . and the Board’s review . . . , 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.”

Id. at 1188 n.19.

10

We vacated the Board’s order and remanded the matter to the Board with

direction

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 [SD]. 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 [Administrative Agency Law, 2 Pa.

C.S. §§ 501-508, 701-704].

Id. at 1189.

On remand, the Board convened on March 9, 2017, to reconsider the

application for assignment, and the Board denied the application. By letter dated

May 11, 2017, the Board memorialized the reasons for its preliminary determination.

First, the Board expressed concern that the application, if granted, would impair the

ability of Dover SD and Northern York SD to provide a comprehensive program of

education for their students. Second, the Board felt that it was unlikely that Northern

York SD’s existing facilities could accommodate the students from WTISD. Third,

the Board expressed concerns about the difference in curricula between the two

school districts, noting that each school district has established a curriculum tailored

to their particular students’ aptitudes, abilities, and interests. Finally, the Board

11

noted that consideration of communities of interest did not weigh in favor of

approving the transfer.

WTISD requested a hearing. By letter dated May 19, 2017, the Board

appointed a hearing officer and instructed the hearing officer to prepare a proposed

report and order for the Board’s consideration.15 By letter dated August 2, 2017, the

hearing officer sought clarification from the Board regarding various aspects of the

matter. By letter dated September 14, 2017, the Board provided the hearing officer

and parties with instructions regarding the issues to be addressed, the school districts

to be considered, and the burden of proof. In that letter, the Board instructed the

hearing officer to address the factors set forth in Section 291 of the School Code and

in Hoots v. Commonwealth of Pennsylvania, 672 F.2d 1107 (3d Cir. 1982). In April

2018, the hearing officer conducted an administrative hearing over the course of

several days.16

15

See 1 Pa. Code §§ 35.202, .205.

16

At the hearing, WTISD called Robert Schoch, an education finance consultant, as a

witness. It also elicited the testimony of several residents of Washington Township: (1) Joe

Sieber; (2) Kathy Kennedy Meyer; (3) Ralph McGregor; and (4) John Peters. Intervenor Dover

Area Education Association, PSEA/NEA (DAEA) called Carla Claycomb, Ph.D., an employee of

the Pennsylvania State Education Association (PSEA) in various capacities since 2003, as a

witness. Dover SD offered the testimony of several of its employees: (1) Tracy L. Kum,

Superintendent; (2) Jennifer A. Benko, Business Manager; (3) Jared C. Wastler, Dover Area High

School Principal; (4) Christopher E. Cobb, North Salem Elementary School Principal; and

(5) Charles Benton, Director of Career Education and Academic Services and Dover Area High

School Director of Career and Technical Education Programs. Keep Us in Dover Schools (KIDS),

organized to oppose the transfer of Washington Township to Northern York SD, called the

following witnesses: (1) Rachel Mailey, a parent of students who currently attend Dover SD

schools and a resident of Washington Township; (2) Sandra Sweitzer, a farmer who currently

resides within the boundaries of Dover SD, presumably in Washington Township; and (3) Heather

Dengler, a resident of Washington Township with students who attend schools in Dover SD.

Northern York SD called as a witness its Superintendent, Eric C. Eshbach, Ed.D.

12

Following the close of the record, the hearing officer issued a proposed report

(Proposed Report), in which he described the standards he applied as follows:

The standards identified by the Board for consideration are

as follows: 1) Whether the transfer makes available

educational programs and educational opportunities to

meet the varying needs, aptitudes, abilities and interests of

individuals residing in the district; 2) Whether the

geographic area (as defined by the re-structured district)

has developed the characteristics of a community;

3) Whether the transfer utilizes existing buildings to the

maximum extent practical avoiding unnecessary new

construction where possible; 4) Whether pupil population

changes are supported by reliable studies of area

development and demonstrate the desirability of the

transfer; and 5) Whether the transfer demonstrates a

capability of providing a comprehensive program of

education. Importantly, the factors set forth by the []

School Code at 24 P.S. § 2-291, and those articulated by

the Board are not mutually exclusive. Instead, the two

frameworks clearly have overlapping aspects and,

therefore, must be considered in conjunction with one

another, where possible. This [P]roposed [R]eport is

being rendered in accordance with the directives

concerning the factors to be considered, as set forth in the

Board’s September 14, 2017 correspondence.

(Decision at 41-42.)

The hearing officer included in the Proposed Report findings of fact,

summarizing the testimony of the witnesses, and the following conclusions of law:

1. The Board is not precluded from approving the

transfer of [WTISD] into [Northern York SD] by 24 P.S.

§ 2-293(a) based upon the student population of each

school district.

2. The evidentiary record establishes by a

preponderance of the evidence that the [Dover SD] and

[Northern York SD] will be able to provide

comprehensive programs of education to their students

following the transfer of [WTISD] to [Northern York SD].

13

3. The evidentiary record establishes by a

preponderance of the evidence that the transportation of

[WTISD] students will be enhanced by the transfer of

[WTISD] into [Northern York SD].

4. The evidentiary record does not establish by a

preponderance of the evidence that the transfer of

[WTISD] to [Northern York SD] will make educational

programs and opportunities available which meet the

varying needs, aptitudes, abilities and interests of

individuals residing in both school districts.

5. The evidentiary record does not establish by a

preponderance of the evidence that the geographic area

will reflect the characteristics of the community as a result

of the transfer of [WTISD] to [Northern York SD].

6. The preponderance of the evidentiary record does

not weigh in favor of transferring [WTISD] to [Northern

York SD] based upon the use of existing buildings to [the]

maximum extent practical, and the avoidance of

unnecessary new construction.

7. The preponderance of the evidentiary record does

not weigh in favor of transferring [WTISD] to [Northern

York SD] based upon pupil population changes.

8. Approval of the transfer of [WTISD] to [Northern

York SD] would be contrary to the standards adopted by

the Board. 24 P.S. § 2-291; Hoots v. Commonwealth of

Pennsylvania, 672 F.2d 1107, 1111 n.3 (3[]d Cir. 1982).

(Decision at 39-40 (emphasis added).)

Thus, the Proposed Report concluded that the proposed transfer of WTISD

met the standards pertaining to comprehensive programs of education and

transportation but failed to meet standards pertaining to varying needs, aptitudes,

abilities and interests of individuals residing in both school districts; characteristics

of a community; lack of pupil populations studies; and use of existing buildings to

the maximum extent practical and the avoidance of unnecessary new construction.

Following the filing of exceptions, by order dated January 10, 2019, the Board

14

adopted the Proposed Report and, upon a vote by a majority of the members of the

Board, denied WTISD’s application. This appeal followed.

III. ISSUES

On appeal, WTISD argues that the Board disregarded this Court’s remand

order, directing the Board to apply the statutory and board standards for organization

of school districts when it appointed a hearing officer and directed that hearing

officer to apply different standards. WTISD also argues that, in denying the

application, the Board improperly engaged in a “weighing test” to determine whether

the transfer would be beneficial or desirable, rather than determining simply whether

the transfer met the statutory or adopted Board standards. Finally, WTISD argues

that the hearing officer failed to evaluate the evidence properly, because his findings

merely summarized testimony and did not review the documents admitted as

evidence.

In addition to the merits, pending before the Court is the Board’s Application

for Leave to File Post-Submission Communication Pursuant to Pa. R.A.P. 2501(a)

(“Board Application”).17

IV. DISCUSSION

A. Board Application

Our remand order directed the Board to consider WTISD’s application for

assignment to Northern York SD pursuant to the standards for organization of

school districts. Sections 291 and 293(a) of the School Code inform us that the

17

The Board has also filed an Application to Strike a portion of WTISD’s answer to the

Board Application, contending that WTISD improperly included the header “New Matter” as an

introduction to certain paragraphs of its answer. Though the Board is technically correct that “New

Matter” is a designation reserved for pleadings, the designation is not material for purposes of this

Court’s consideration of the Board Application. Accordingly, we will deny the Board’s

Application to Strike.

15

General Assembly directed the Board to adopt standards for the organization of

school districts based on certain enumerated factors and not to approve a school

district of less than 4,000 pupils unless the factors enumerated in those sections

required approval of such a small district.

In reviewing the Board’s actions following remand, we are troubled by the

Board’s failure below to locate, let alone identify, standards for the creation of school

districts despite the General Assembly’s directives in the School Code. We would

have expected these standards to be found in the Pennsylvania Code. Instead, the

Board on remand below directed the hearing officer to follow a 1982 Third Circuit

opinion, Hoots. Hoots addressed challenges to the consolidation of various school

districts that resulted in the creation of racially segregated schools. In a footnote,

the federal court in Hoots refers to Standards for Approval of Administrative Units

that were purportedly adopted by the Board. The federal court, citing an exhibit not

present in the record before this Court, wrote:

[T]he State Board adopted Standards for Approval of

Administrative Units. These standards provided, inter

alia, that:

(a) An administrative unit shall make available an

educational program and educational opportunities

to meet the varying needs, aptitudes, abilities, and

interests of individuals residing in the

administrative unit.

(b) Consideration should be given to whether a

geographic area has developed the characteristics of

a community. Community, as used here, includes

one or more municipalities and the surrounding

territory from where people came for business,

social, recreational, fraternal or similar reasons.

Neither race or religion shall be a factor in

determining administrative unit boundaries and

differences in the social and economic level of the

16

population shall not be a basis to determine these

boundaries.

....

(c) An administrative unit shall utilize existing

buildings to the maximum extent practical avoiding

unnecessary new construction where possible.

(d) Pupil population changes may be considered in

the planning of administrative units where the

changes are supported by reliable studies of area

development showing past pupil population trends

and future projections based on recognized

statistical methods.

(e) Consideration shall be given to the capability of

providing a comprehensive program of education

which shall mean the ability to educate and train

each child within his capacity to the extent

demanded by the immediate requirements of his

growth and his relationship to the strengthening of

this Commonwealth and nation, and shall include,

but not be limited to, wealth per pupil, qualifications

of professional staff, enrollment and diversification

of curriculum.

Hoots, 672 F.2d at 1111 n.3. It is difficult to discern whether the Third Circuit in

Hoots paraphrased the supposed standards or included them in the footnote verbatim,

and, through the use of the term “inter alia,” it is clear that the summary or recitation,

whichever it may be, is incomplete.

During oral argument in this matter, we raised our concern about the Board’s

reliance on Hoots and the apparent lack of any published standards for evaluating

WTISD’s application. The Board conceded in its merits brief and during oral

argument that it could not locate standards beyond those set forth in Hoots.

Following oral argument, however, the Board filed the Board Application, claiming

that, with the help of a research archivist, the Board located what it claimed to be the

applicable standards adopted by the Board, as published in the Pennsylvania

17

Bulletin. 1 Pa. B. 196 (August 22, 1970). Inexplicably, these standards do not

appear anywhere in the Pennsylvania Code.

Nonetheless, while WTISD raises numerous objections to the Board

Application, WTISD does not dispute the fact that the Board, nearly 50 years ago,

published the standards in the Pennsylvania Bulletin. The Pennsylvania Code, the

supplements thereto, and the Pennsylvania Bulletin serve as “the only legal evidence

of the valid and enforceable text” of regulations, statements of policy, or other

documents required or authorized to be so published. 45 Pa. C.S. § 901(a).

Publication of these Board standards in the Pennsylvania Bulletin “creates a

rebuttable presumption that the document was duly issued or promulgated, approved

as to legality, and all requirements otherwise met.” Sullivan v. Dep’t of Transp.,

Bureau of Driver Licensing, 682 A.2d 5, 8 n.4 (Pa. Cmwlth. 1996) (en banc) (citing

45 Pa. C.S. § 905). WTISD does not offer any citation to any subsequent act by the

legislature, the Board, or the courts declaring the published standards invalid,

repealing them, replacing them, or amending them in any material way.

Accordingly, the Court will grant the Board Application and consider the

published standards in the Pennsylvania Bulletin (Board Standards), to the extent

applicable, in evaluating the merits of WTISD’s appeal of the Board’s

adjudication.18 In doing so, we will apply the Board Standards to the reorganized

school districts, as proposed in the WTISD application. The question, then, is

whether the Board erred in evaluating the question properly before it, that being

whether the reconfigured school districts—new Dover SD and new Northern York

18

For ease of reference, we have attached a copy of the Board Standards to this Opinion.

In the Board Application, the Board does not seek a remand to afford it the opportunity to

reconsider its decision in light of the recently uncovered Board Standards. WTISD opposes any

remand for such purpose.

18

SD—meet the applicable statutory and regulatory standards for administrative

units.19

B. Analysis of Grounds for Disapproval

The Board Standards addressing school district organization are set forth in

Chapters 2-100 (Introduction), 2-200 (Annexation for School Purposes), and 2-300

(Reorganization of School Districts) of the Board’s regulations, as published in the

August 22, 1970 Pennsylvania Bulletin. Notwithstanding WTISD’s arguments to

the contrary, the Board Standards address more than the county-wide reorganization

of school districts mandated by legislation in the 1960s. As section 2-110 of the

Board Standards provides: “The [School Code] carries numerous provisions for

school district organization and changes in school district boundaries.” The Board

regulations reference three types of actions with respect to school district

boundaries: (1) annexation; (2) school district reorganization; and (3) “minor

changes in school district boundaries without disturbing municipality boundaries.”

Board Standards § 2-110 (emphasis added).

Using the Board’s terminology, this matter involves a minor change to school

district lines, in that it seeks to relocate an entire municipality from one school

district to an immediately adjacent district. We, therefore, look to Chapter 2-300 of

the Board Standards.

19

We emphasize here, as we did in WTISD I, that the General Assembly, in establishing a

mechanism by which petitioning taxpayers could create an independent school district for transfer

to an adjoining existing district, created a framework that required approval of the creation of the

independent school district for transfer purposes and approval of its assignment to the receiving

district unless doing so would create new district boundaries that violate the statutory or regulatory

standards governing school districts. The General Assembly did not bestow upon the Board a veto

power over the judgment of the taxpayers. It also did not empower the Board to weigh the

subjective desirability of the grant or denial of a transfer. This is not an exercise of discretionary

authority within the Board.

19

1. Varying Needs, Aptitudes, Abilities and Interests

Section 2-352(4) of the Board Standards provides: “An administrative unit

shall make available an educational program and educational opportunities to meet

the varying needs, aptitudes, abilities and interests of individuals residing in the

administrative unit.” 20 Although phrased as a directive, this standard can be applied

in evaluating minor revisions to school district lines. In the context of this matter,

then, the Board could consider whether new Dover SD and new Northern York SD

will be able to meet this directive.

In addressing this standard, the Board wrote:

WTISD bears the burden of proving that educational

programs and opportunities will be available which satisfy

the varying needs, aptitudes, abilities and interests of

individuals residing in [Dover SD] and [Northern York

SD] after the transfer. WTISD fails to make any

substantive arguments for why the transfer will satisfy the

varying needs, aptitudes, abilities and interests of

individuals residing within both Districts after the transfer.

Instead, WTISD essentially argues that because both

Districts will be able to offer comprehensive programs of

education, both Districts implicitly satisfy this standard.

For the reasons stated above however, the anticipated

ability to provide comprehensive programs of education is

not the equivalent of establishing that the transfer will

satisfy the varying needs, aptitudes, abilities and interests

of individuals within the Districts.

[Dover SD] contends that WTISD has failed to meet its

burden of establishing that the transfer will make available

educational programs and opportunities which satisfy the

needs, aptitudes, abilities and interests of individuals in

both Districts. Although not expressly stated, the

underpinnings of [Dover SD’s] assertions rest upon the

notion that because the programs of instruction within the

20

Administrative unit is another term for school district. An administrative unit is defined

as “a geographic area under the control of a single board of school directors.” Board Standards

§ 2-352(1).

20

District are developed and/or approved by the publicly

elected Board of School Directors, they necessarily reflect

the needs, aptitudes, abilities and interests of the residents

within the District. [Dover SD], therefore, contends that

because the transfer will result in [Dover SD] students

losing educational and program opportunities they would

otherwise continue to have absent the transfer, the transfer

will not promote the needs, aptitudes, abilities and

interests of the residents within the District.

The record demonstrates that [Dover SD] provides

programs of education different from those offered by

[Northern York SD], including the provision of full-day

kindergarten. When addressing the anticipated reduction

in student population resulting from the transfer, [Dover

SD] High School Principal, Jared Wastler, testified that

the classes offered by the High School are based upon

factors which include the students’ graduation

requirements, the sequencing of core courses and space

availability, particularly [Dover SD’s] Career Technology

Education Program. Moreover, several courses have set

requirements on the grade levels at which the students are

able to take the classes. Several of [Dover SD’s] four-year

educational programs traditionally start their Career

Technology Education Program students in ninth grade as

an introductory course which forms the foundation upon

which subsequent courses are offered. The record also

shows that the transfer would result in [Dover SD]

students having reduced educational and extracurricular

opportunities. In particular, Mr. Wastler testified that the

High School would not be able to offer its current course

selection on an annual basis if the number of students fall

below the acceptable range due to the loss of students. He

additionally established that a loss in student population

may also result in Dover High School having to return to

providing combination classes wherein two or three

different level classes are taught in the same room.

North Salem Elementary School Principal, Christopher

E. Cobb, testified that the transfer will probably require

the North Salem Elementary School to reduce its teaching

staff to two teachers per grade level due to the reduction

in the number of students. Mr. Cobb established that the

loss of one teacher per grade level would preclude the

21

North Salem Elementary School from departmentalizing

its course structure, and would result in North Salem

Elementary School reducing the number of its encore

teachers and services, such as the reading specialist and

learning support teachers.

[Dover SD] Director of Career Education and

Academic Services, Charles Benton, testified that [Dover

SD’s] philosophy towards its STEM[21] program is

different from the philosophy of [Northern York SD] which

is only STEM[-]oriented. As an example, the

[22]

agricultural-based CTE program courses offered by

[Dover SD] are different from the STEM courses offered

by [Northern York SD] in that they are approved by the

Commonwealth of Pennsylvania, are subject to State

guidelines and are validated by end-of-program

examinations. Further, [Dover SD] provides full-day

education at the York County School of Technology,

while [Northern York SD] offers half-day technical

programs. [Dover SD] Superintendent also highlighted

the technology initiatives of [Dover SD], including the

provision of iPads to students, which are not being

provided by [Northern York SD].

As indicated above, Dr. Claycomb opined that [Dover

SD] High School [s]tudents who transfer to [Northern

York SD] could potentially lose access to programs of

study in which they currently participate, including the

District’s geo-spacial information program, career and

technical education program, drop-out re-engagement

program, agricultural educational program, and specific

pathway programs. [Dover SD] estimates that it will

experience a net loss of approximately $2.3 million in

annual revenue (3% of its budget) if the [WTISD] transfer

occurs. Dr. Claycomb testified that the anticipated lost

revenue to [Dover SD] may result in loss of programs that

are currently of value to the local community.

WTISD’s attempts to counter the foregoing evidence by

asserting that [Dover SD] will eventually adapt to the

changes in student population and lost revenue, and will

21

STEM is the acronym for “Science, Technology, Engineering and Math.”

22

CTE is the acronym for “Career and Technical Education.”

22

overcome the “temporary concerns” created by the

transfer. Despite arguing that academic merit is not a

factor for consideration in this matter, WTISD also argues,

in part, that “[g]iven that Northern [York SD] is

academically superior in every area measured, it is simply

not credible to argue that the transfer is going to have a

negative impact of [sic] [WTISD s]tudents.” WTISD’s

argument bears little weight in that the breadth of the first

Hoots standard extends beyond the confines of the effect

the transfer will have on students’ academic experience.

Instead, Hoots requires an examination of the needs,

aptitudes, abilities and interests of all those residing within

[Dover SD]. For that reason, the potential ability by

[Dover SD] to adjust its student population in the years

after the merger cannot negate the disruption the transfer

will have on the District’s existing programs and

opportunities which, in turn, reflect the fabric, character

and priorities of the residents of [Dover SD].

Accordingly, the evidentiary record addressing the

educational programs and opportunities available which

meet the varying needs, aptitudes, abilities and interests of

individuals residing in [Dover SD] fails to support the

transfer by a preponderance of the evidence.

(Decision at 52-55 (emphasis added) (citations omitted).)

The Board’s analysis essentially holds that differences between educational

programs offered by the receiving and losing school districts, the anticipated change

in Dover SD’s programs, and inconvenience to Dover SD as a result of the proposed

transfer will result in districts incapable of providing “educational programs and

educational opportunities to meet the varying needs, aptitudes, abilities and interests

of individuals residing in the administrative unit.” See Section 2-352(4) of the Board

Standards. We must conclude that the Board erred in the manner in which it applied

this standard.

It is undisputed that both school districts currently “meet the varying needs,

aptitudes, abilities and interests of” their students. There is, however, no evidence

or finding by the Board that if WTISD is drawn into Northern York SD, either

23

Northern York SD or Dover SD will be unable to meet this directive as a result.

Certainly, there is a plethora of evidence, much of it the Board credited, of how the

current curricula at Dover SD relating to STEM and vocational-technical training

differ from those of Northern York SD. There is also evidence of differences in how

the school districts deploy technology to support student learning (Dover SD

provides iPads to students). While this evidence shows that some WTISD students

will have a different learning experience in Northern York SD, there is no evidence

in the record to support any finding or conclusion that WTISD students could not

thrive in Northern York SD or, more directly, that Northern York SD cannot and

will not “meet the varying needs, aptitudes, abilities and interests of” those students.

There is also credited evidence of how Dover SD may have to alter its current

curriculum to account for the loss of WTISD students. Indeed, the testimony of

Dover SD witnesses shows that Dover SD can, if necessary, adapt. No witness

testified that Dover SD cannot make the necessary adjustments and still meet the

varying needs, aptitudes, abilities and interests of the students remaining in Dover

SD. The Board standards do not require the applying independent school district to

establish that the losing school district will be able to preserve every existing

program post-transfer. Nor does it require the independent school district to

establish that the transfer will impose no inconvenience or disruption on the losing

district or its remaining student population. That, however, is how the Board

interpreted this particular standard. In that regard, the Board erred. If we allow this

error to stand, the mountain that an independent school district would have to climb

before the Board would be insurmountable.

In sum, the Board erred as a matter of law in how it applied this particular

standard to the WTISD application. Rather than focus on whether both school

24

districts, post-transfer, will be able to “meet the varying needs, aptitudes, abilities

and interests of” their new student populations, the Board improperly pitted one

district’s existing curriculum and offerings against the other’s and made

inconvenience and disruption to Dover SD the paramount focus of its legal analysis.

In reality, even based on the evidence and findings of the Board, we have no doubt

that both Northern York SD and Dover SD will be able to meet this Board standard

post-transfer, even if they have to adapt their existing programs of instruction and

curricula to do so.

2. Community Characteristics

Section 2-352(7)(c) of the Board Standards provides:

Consideration should be given to whether a geographic

area has developed characteristics of a community.

Community, as used here, includes one or more

municipalities and the surrounding territory from which

people come for business, social, recreational, fraternal or

similar reasons. Neither race nor religion shall be a factor

in determining administrative unit boundaries and

differences in the social and economic level of the

population shall not be a basis to determine these

boundaries.

In its directions to the hearing officer, the Board asked that the hearing officer hear

and consider whether the geographic area of the new Northern York SD has

developed the characteristics of a community. Implicit in the Board’s direction is

its view that municipalities will only be approved for transfer if the municipality has

an existing community connection to the receiving school district.

In terms of fact finding, the Board found the evidence was insufficient to

establish that the new Northern York SD, with WTISD, will reflect the

characteristics of the community. It reasoned:

The evidentiary record on this issue almost exclusively

took the form of anecdotal evidence comprising

25

witness[es]’ personal preferences rather than the

presentation of empirical or statistical evidence. Based

upon the testimony provided, each party is found to have

presented evidence of equal weight regarding whether the

residents of Washington Township most closely identify

with the character of the current Dover [SD] boundaries,

or with the anticipated character of the community

resulting from the transfer. Because WTISD bears the

burden of proving by a preponderance of the evidence that

Washington Township has developed the character of the

community to be formed by the transfer, and because the

record fails to establish through substantial evidence that

the residents of Washington Township more closely

affiliate themselves with the character of the post-transfer

community, WTISD has not sufficiently satisfied its

burden on this issue in support of the transfer.

(Decision at 56 (citations omitted).)

We again take issue with how the Board has applied one of the statutory and

regulatory standards to the minor school district revision sought by WTISD. This

particular standard, such as it is, requires only consideration of whether a

geographic area (not a proposed administrative unit) has developed characteristics

of a community. The clear concern here was that when the counties proposed new

school district lines, in response to the legislative directives in the 1960s to create

fewer and larger school districts, they were to pay careful attention to avoid, if at all

possible, breaking up communities in the process. Unlike the Board, we do not read

this standard as requiring counties to establish through their county plans that each

proposed administrative unit enjoys an existing and established community bond.

Again, that would be too steep a hill to climb. The counties could, however, draw

the administrative units in a way to avoid, as much as possible, breaking up

communities.

Properly interpreted, then, the statute and regulation require the Board, in this

instance, to consider whether the transfer of WTISD to Northern York SD divides,

26

or breaks up, a community. Considering that we are here evaluating the transfer of

an entire municipality from one school district to another, a minor revision, this

standard is easily met. The Board’s regulation defines community as including, inter

alia, a municipality. Here, Washington Township (by over 70% of its taxpaying

residents), a community, has expressed its desire through the petition process

authorized by the General Assembly to move its community from Dover SD to

Northern York SD. The will of that community cannot be set aside by anecdotal

evidence of some residents who oppose the transfer.

We are not discrediting the notion that some in Washington Township have

developed a sense of community within Dover SD. That, however, is likely the case

in every instance where a municipality invokes the statutory process to move to

another school district. Longstanding school district lines create a sense of

community. Every petition to establish an independent school district for transfer

purposes under the School Code proposes to break up an existing school district.

The General Assembly understood this when it passed the legislation. It could not

have intended that proposed breakup to also be a basis for denying the petition. Yet,

that is how the Board has applied the standard in this case. It did so in error.

In short, the Board committed legal error in its application of the community

considerations standard. WTISD’s application for assignment proposes transfer of

an entire community—Washington Township—to Northern York SD. There is no

finding by the Board or evidence in the record to suggest that the assignment, if

allowed, will result in breaking up some other community. Accordingly,

consideration of community characteristics does not warrant denial of the

application for assignment of WTISD to Northern York SD.

27

3. Use of Existing School Buildings

Section 2-352(7)(e) of the Board Standards provides: “An administrative unit

shall utilize existing buildings to the maximum extent practical avoiding

unnecessary new construction where possible.” The Board, in analyzing this

standard, wrote:

WTISD addresses this standard in its Post-Hearing

Brief by asserting that the proposed transfer is anticipated

to have a beneficial impact on [Dover SD] by relieving

some of the overcrowding experienced by the District.

WTISD additionally asserts that “Northern [York SD] will

not need any additional new construction . . . .” Although

the record supports the argument that a reduction in

student population and the construction of its new High

School may alleviate current overcrowding within [Dover

SD], the record equally shows that the existing

infrastructure within [Northern York SD] is inadequate to

accommodate the additional students anticipated by the

transfer.

Superintendent of Schools, Dr. Eshbach, opined that

the transfer of 250-300 students from [Dover SD] to

[Northern York SD] would be “significant”. Dr. Eric

Eshbach’s Statement to the [Board], revised

March 7, 2018, stated, in part, “To accommodate this

anticipated increase in enrollment [approximately 300

students], new classrooms and shared-use space must be

added to the existing facilities at the Wellsville

Elementary School and the Northern Middle School” in

[Northern York SD]. The record shows that the

elementary schools within [Northern York SD] are at 80%

capacity. However, the addition of students from

[WTISD] would increase the capacity of the District’s

middle school to 93%. Dr. Eshbach qualified the remarks

in his report to a small degree at the hearing by testifying

that although the addition of students to Wellsville

Elementary School will not require additions to the school,

it would nevertheless require using current spaces in

different capacities and would have an impact on

[Northern York SD’s] educational program.

28

The record also shows that the Northern York County

Policy Manual limits its middle school class size to 28-35

students. For that reason, [Northern York SD] anticipates

the need to rapidly renovate its middle school to properly

accommodate the additional students it would receive

through the transfer of [WTISD] students into the District.

Dr. Eshbach established that the addition of students

through the transfer of [WTISD] students would cause

class size to exceed that range, absent renovations. He

also anticipates the need for [Northern York SD] to expand

its middle school cafeteria and add or expand some

classrooms and common spaces should the transfer occur

because the current middle school does not have space to

add another teaching team to the building. Dr. Eshbach

also testified that, in terms of funding, [Northern York SD]

would probably require the suspension of some of the

PlanCon rules established by the Commonwealth in order

to renovate its middle school in a timely manner. Based

on the foregoing evidence, the record fails to establish that

the transfer would utilize existing buildings to the

maximum extent practical so as to support the proposed

transfer.

(Decision at 56-58 (citation omitted).)

As with the standard above relating to communities, this standard seems to be

more relevant to the reorganization of school districts mandated by the General

Assembly. We note that the standard does not prohibit new construction; rather, it

requires school districts to do two things: (1) utilize existing buildings to the

maximum extent practical; and (2) avoid unnecessary new construction. To the

extent this standard can be applied when considering an application for the

assignment of independent school districts, as the Board attempted to do, the

assignment does not violate the standard.

The evidence and the Board’s findings reveal that Northern York SD has the

ability to absorb the additional students with limited renovations to and repurposing

of existing space at its schools. Through renovations and repurposing, Northern

29

York SD will be using its existing buildings “to the maximum extent practical,”

avoiding the construction of new buildings. The Board, therefore, erred in

concluding that the transfer would not meet the standard relating to the use of

existing buildings.

4. Studies of Population Changes

Section 2-352(7)(b) of the Board Standards provides the following with

respect to pupil population changes:

Pupil population changes may be considered in the

planning of administrative units when the changes are

supported by reliable studies of area development showing

past pupil population trends and future projections based

on recognized statistical methods. Examples of reliable

studies of area development are those made by planning

commissions, public utility companies and established

survey agencies.

(Emphasis added.) Similarly, Section 2-352(7)(g) of the Board Standards provides

the following with respect to population changes generally:

Population changes may be considered in the planning of

administrative units when the changes are supported by

reliable studies of area development showing expansion of

the area and by growth projections based on recognized

statistical methods. Examples of reliable studies of

population growth beyond a normal projection are those

made by planning commissions, public utility companies

and established survey agencies.

(Emphasis added.)

The Board, in addressing these standards, wrote:

WTISD advocates for the transfer of [WTISD]

students, in part, due to anticipated growth within [Dover

SD] which, it contends, will place an enormous strain on

the District’s resources. In support of that argument,

WTISD relies primarily upon the testimony of its expert,

Mr. Schoch, and upon observations made by several

witnesses from within the community who drove through

30

what was described at the hearing as new residential

communities within [Dover SD]. Mr. Schoch opined that

[Dover SD’s] student population is expected to increase

by approximately 3,000 students due to new construction

of residential communities over the next ten (10) to twenty

(20) years. Accordingly, WTISD argues that the transfer

of approximately 250 students from [Dover SD] to

[Northern York SD] will alleviate some of the District’s

overpopulation and, therefore, supports the transfer.

In contrast, [Dover SD] opposes the transfer on

economic grounds by challenging Mr. Schoch’s

contention that [Dover SD] will be able to recover the

revenue loss from the transfer through a combination of

residential growth within the District and cost

containment. Like their arguments that the transfer will

degrade the Districts’ abilities to provide comprehensive

programs of education, [Dover SD] and DAEA argue that

the revenue loss from the change in student population due

to the transfer will, in turn, result in sufficient diminished

educational opportunities for [Dover SD] students to

justify the denial of the transfer. The District also asserts

that Mr. Schoch failed to present sufficient evidence that

the change in student population from the transfer will

benefit [Northern York SD].

In its September 14, 2017 correspondence, the Board

described this factor as “Whether pupil population

changes are supported by reliable studies of area

development and demonstrate the desirability of the

transfer.” The Court in Hoots described this factor

somewhat differently as permitting consideration of pupil

population changes “in the planning of administrative

units where the changes are supported by reliable studies

of area development showing past pupil population trends

and future projections based on recognized statistical

methods.” Hoots, 672 F.2d at 1111 n.3. None of the

parties have cited to any legal authority, and the [hearing

o]fficer is not aware of any such authority which

specifically addresses this factor in detail.

In Hoots v. Commonwealth of Pennsylvania,

359 F. Supp. 807, 809 (W.D. Pa. 1973)[,] and its progeny

however, this factor was addressed in the context of a class

action lawsuit which contested plans of reorganization and

31

consolidation of school districts which the plaintiffs

contended were racially segregated. Id. at 809. Unlike

this case where the transfer of approximately 250-300

[WTISD] students is the salient issue, the courts’

consideration of this factor in the Hoots cases primarily

focused upon whether greater demographic shifts favored

consolidation, as reflected by past pupil population trends

and future population projections. For that reason, the

[hearing o]fficer interprets the factor articulated by the

Board as calling for a determination of whether greater

student population trends in each school district, as shown

through reliable studies of area development, support the

transfer. Because the arguments advanced by [Dover SD]

and DAEA on this issue pertain to the ability by [Dover

SD] to continue to provide a comprehensive education to

its students after the transfer, and/or the ability of both

Districts to provide qualified professional staffs and

diversified curricula, they are not materially relevant to

this factor but, instead, are more particularly suited to

other factors already discussed herein.

WTISD presented evidence of student population

trends, to some degree, primarily through Mr. Schoch.

Mr. Schoch opined that [Dover SD’s] student population

is expected to increase by approximately 3,000 students

due to new construction over the next ten (10) to twenty

(20) years. However, he was unaware of whether Dover

Township or Dover Borough has begun the development

of new residential properties or whether there are any

housing development plans within Washington Township.

For that reason, WTISD’s evidence regarding current,

and/or new development consisted, in large part, of

testimony and general observations of lay witnesses who

had merely driven through various residential

communities in the area. WTISD also relies upon the

growth projections over the next 10 to 30 years reflected

by the new Dover Township High School’s increased

capacity of approximately 200 students.

Mr. Schoch did not speak with any members of

[Northern York SD] or [Dover SD] as part of his review.

Accordingly, Mr. Schoch’s analysis regarding [Dover

SD’s] growth potential was admittedly based upon his

review of a Joint Comprehensive Plan/Growth

32

Management Plan for Dover Borough/Dover Township

Region developed approximately ten years ago, in

January 2008. Mr. Schoch conceded that although the

Comprehensive Plan set forth 20-year growth projections

using 2006 statistics, the projections within the plan have

not come to fruition in the 10 years since the Plan’s

creation. Notably, he has not conducted a similar analysis

of residential growth or building capacity in [Northern

York SD]. For that reason, the record on this issue

comprises mostly of speculative student population

growth estimates from residential housing units, without

knowing how many students per house, if any, will exist,

or if and when the developments will achieve build-out.

Although he had conducted an analysis of [Dover SD’s]

population projections based, in part, upon the York

County Planning Commission’s population projections,

Mr. Schoch admitted to not having conducted a similar

analysis for [Northern York SD]. Nor has he made similar

projections for [Northern York SD]. Upon consideration

of the foregoing, the [hearing o]fficer finds that the growth

projections offered by the WTISD on the basis of possible

residential development and the capacity increase of the

High School of 200 students over the next 10 to 30 years

are too speculative to constitute a preponderance of the

evidence that the transfer is desirable based upon

anticipated pupil population changes, as shown through

reliable studies of area development and future

projections.

(Decision at 58-61 (emphasis added) (citations omitted).)

We agree with WTISD that the Board erred as a matter of law in how it applied

these standards to the application for assignment. Importantly, there is nothing in

the Board Standards that requires an independent school district for transfer

purposes to prove, by population studies, the “desirability” of the application for

assignment. It was clear error by the Board to impose such a nonexistent burden on

WTISD. Rather, the population studies standards, like other standards in the Board

Standards, appear to be linked to legislative directives in the 1960s to create larger

and fewer school districts in the Commonwealth, with a 4,000 pupil average daily

33

membership goal per district, at a minimum. As part of the reorganization, a county

board of school directors could use “reliable studies” to justify its proposed plan of

reorganization and how the plan satisfies that statutory pupil population standard.

To the extent this standard could be applied in this situation—a minor revision

to existing district lines to transfer an entire municipality to an adjacent school

district—the standard would likely only come into play if the proposed transfer of

an entire municipality would, from a population perspective, dramatically and

materially alter pupil populations in the losing and receiving school districts.

The proposed transfer of students cannot overwhelm a receiving district with pupils

it cannot reasonably accommodate nor result in the losing district becoming so small

that it cannot reasonably operate at the time of transfer or for a reasonable period

into the future, taking into consideration anticipated increases or decreases in pupil

population.

Neither the evidence nor the Board’s findings support such a dramatic and

material shift of student population in this matter. Both Northern York SD and

Dover SD currently have fewer than 4,000 pupils (between 3,000 and 3,500

students),23 meaning both are already below the statutory minimum threshold. That

23

Dover SD is the larger of the two. For the 2016-2017 school year, Dover SD’s

enrollment was 3,499 students. (C.R., Hearing Exhibits, at 000046.) Northern York SD’s

enrollment for that school year was 3,192 students. (Id. at 000052.) These numbers are in accord

with enrollment data maintained by the Pennsylvania Department of Education

(Department), https://www.education.pa.gov/Documents/Data%20and%20Statistics/Enrollment/

Enrollment%20Projections/School%20District%20Enrollment%20Projections.pdf (last visited

June 4, 2020). For the 2018-2019 school year, the last school year reported by the Department,

Northern York SD’s student population was 3,224. Dover SD’s student population was 3,516.

Roughly speaking, then, the transfer of WTISD to Northern York SD will yield redrawn school

districts that are roughly equal in size from a pupil population perspective.

34

will not change if the Board approves the application for assignment.24 The shift of

student population would be approximately 250 pupils to Northern York SD, or

roughly 7% of the Dover SD student population. As noted above, the Board’s

findings and the evidence support the conclusion that Northern York SD is capable

of absorbing the additional student population.

Dover SD presses its concern over the financial impact of the transfer.

According to its Business Manager, Ms. Benko, the loss of revenue to Dover SD

resulting from the transfer could be approximately $2.3 million. (Board Finding of

Fact (FF) # 93.) According to Mr. Schoch, this loss of revenue is

approximately 3% of Dover SD’s annual budget of approximately $75 million.

(FF ## 21, 22.) Ms. Benko further testified that Dover SD anticipates the need to

increase property taxes, furlough professional employees and staff, and modify

curriculum if the transfer is approved. (FF ## 96, 100.) Nonetheless, Ms. Benko

testified, and the Board found, that Dover SD “has not . . . conducted a

comprehensive analysis of ways to reduce expenses following the transfer.”

(FF # 96.)

Every transfer of a municipality from one school district to another will have

a financial impact on both the receiving and losing districts. The General Assembly

acknowledges this in the School Code, requiring the court of common pleas, in its

decree establishing an independent school district for transfer purposes, to

“determine the amount, if any, of the indebtedness and obligations of the school

district, from whose territory such independent district is taken, that said district shall

assume and pay, and, a statement prorating the State subsidies payable between or

24

It is for this reason that we reject DAEA’s contention that the proposed transfer “would

result” in school districts with disfavored pupil populations—i.e., below 4,000 students. These

school districts are already below the preferred minimum threshold for student population.

35

among the losing district or districts and the receiving district.” Section 242.1(a) of

the School Code. What the testimony and fact finding by the Board show is that

Dover SD may face some difficult business choices as a result of the transfer. Dover

SD does, however, have choices. In other words, there is no evidence in the record,

or finding by the Board, that Dover SD cannot weather the financial consequences

of the transfer. Indeed, as we have noted above, the evidence of record and the Board

findings show indisputably that Dover SD and Northern York SD can adapt,

academically and financially, to the transfer and still meet the standards for school

districts under the School Code and the Board’s regulations.

In short, the Board’s factual findings and the evidence of record establish that,

from a pupil population perspective, the transfer of WTISD from Dover SD will not

overwhelm Northern York SD with students that it cannot reasonably accommodate

nor result in Dover SD being reduced to such a size that it cannot reasonably operate

after the transfer. The Board, therefore, erred in concluding that the transfer would

violate standards relating to pupil population.

C. Effective Date

Northern York SD has remained neutral on the merits of both the original

petition to establish WTISD for transfer purposes and the application for approval

of the assignment of WTISD to Northern York SD. Its paramount and laudable

focus has been on securing a reasonable transition period with oversight to provide

a comprehensive program of education to its current students while planning to do

the same for its future students.

Section 226 of the School Code, 24 P.S. § 2-226, provides the following with

respect to transition:

If any new school district is made by the creation of

any . . . independent school district, . . . or if the boundary

36

lines of any school district are changed, by reason of the

changing boundary lines of any . . . independent school

district, then, in any such case, the change, so far as it

relates to school districts or school affairs, shall take effect

at the beginning of the first school year after such . . .

independent school district has been created . . . or such

change in boundary lines permanently affected.

(Emphasis added.) The common pleas court created WTISD for transfer purposes

in November 2014. We cannot make the new boundaries retroactively effective to

the 2015-2016 school year. The fallback, then, is the first school year after such

change in boundary lines is permanently affected.

We agree with Northern York SD that a reasonable period of transition is

necessary, particularly because both districts have been operating under a period of

uncertainty over the last five years while this matter has been slowly making its way

through the common pleas court, the Secretary, the Board, and now this Court. Both

school districts must have a reasonable period of time to plan academically and

financially for their new student populations.

Accordingly, and consistent with governing law, we will remand this matter

to the Board with direction that it make revisions to the York County plan of

organization of school districts to reflect the assignment of WTISD to Northern York

SD effective with the 2021-2022 school year.25 The Board should then transfer the

25

The COVID-19 pandemic has placed a tremendous stress on our school districts and

students. Effective March 16, 2020, Governor Tom Wolf indefinitely suspended in-class

instruction at brick and mortar schools throughout the Commonwealth. On April 9, 2020, he

extended the school closure order for the remainder of the 2019-2020 school year. School districts

have moved to distance learning platforms in an effort to educate their student populations and

complete the academic year, and extracurricular activities and interscholastic athletic competitions

have been cancelled. With lingering uncertainty as to when these and other COVID-19 precautions

will be lifted, an effective date of the 2020-2021 academic year will place too much stress on

already burdened school districts as they attempt to manage the remainder of this academic year

and plan (hopefully) to return to some sense of normalcy next school year.

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matter back to the common pleas court to oversee the implementation of the

reassignment. In particular, but without limitation, the common pleas court must

“determine the amount . . . of indebtedness and obligations of [Dover SD], [if any,

that Northern York SD] shall assume and pay, and, a statement prorating the State

subsidies payable between or among [Dover SD] and [Northern York SD].”

Section 242.1(a) of the School Code.

V. CONCLUSION

For the reasons set forth above, the Board erred in its evaluation of the

standards for the organization of school districts set forth in the School Code and the

Board’s regulations as applied to the application for approval of the assignment of

WTISD to Northern York SD. As neither the Board’s fact finding nor the evidence

of record show that the assignment will result in school districts that do not meet

statutory and Board standards for administrative units, we will reverse the Board’s

decision denying the application and remand the matter to the Board for further

proceedings consistent with this Opinion.

P. KEVIN BROBSON, Judge

Judges Cohn Jubelirer and Fizzano Cannon did not participate in the decision of this

case.

38

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Washington Township Independent :

School District, :

Petitioner :

:

v. : No. 142 C.D. 2019

:

Pennsylvania State Board of Education, :

Respondent :

ORDER

AND NOW, this 4th day of June, 2020, the order of the Pennsylvania State

Board of Education (Board), dated January 10, 2019, is REVERSED. This matter

is REMANDED to the Board for further action in accordance with the

accompanying Opinion.

The Board’s Application for Leave to File Post-Submission Communication

Pursuant to Pa. R.A.P. 2501(a) is GRANTED. The Board’s Application to Strike is

DENIED.

Jurisdiction relinquished.

P. KEVIN BROBSON, Judge