# School District v. Wilkinsburg Education Ass'n

> Supreme Court of Pennsylvania · October 27, 1995 · 542 Pa. 335

URL: https://www.frixlaw.com/law-library/cases/9763185

## Case

- **Full name:** SCHOOL DISTRICT OF WILKINSBURG and Board of School Directors of the School District of Wilkinsburg, Appellants, v. WILKINSBURG EDUCATION ASSOCIATION, Pennsylvania State Education Association/National Education Association, Anne McLemore, George Edwards, Denise Edwards and Michael Evans, Appellees
- **Court:** Supreme Court of Pennsylvania
- **Decided:** October 27, 1995
- **Citations:** 542 Pa. 335; 667 A.2d 5; 1995 Pa. LEXIS 1053
- **Precedential status:** Published
- **Opinion:** Dissent by Nix
- **Judges:** Nix, Flaherty, Zappala, Cappy, Castille, Montemuro
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9763185

## How later opinions describe it (automated extraction)

- stating that harm from denying a preliminary injunction must outweigh harm from granting the injunction and that the injunction must be reasonably suited to abate the harm it is designed to prevent
- reversing grant of preliminary injunction and dissolving the injunction because the record failed to establish irreparable harm or that issuing preliminary injunction avoided greater harm than by refusing it or that there might not be an adverse effect upon public interest
- stating that, under the Education Clause, public education is a “fundamental right” in Pennsylvania
- observing that “public education in Pennsylvania is a fundamental right” (citing Pa. Const, art. Ill, § 14)

## Opinion text

NIX, Chief Justice,
dissenting.
I respectfully dissent. Although the majority is apparently guided by the laudable intention of ensuring that the children of the Turner School receive an educational opportunity equal to that of their peers in other parts of the Commonwealth, I must nevertheless disassociate myself from the reasoning and result of the majority opinion.
The threshold question in this case is whether the Board of School Directors of the School District of Wilkinsburg (“Board”) is authorized by the Public School Code, 24 P.S. § 1-101 et seq., to enter into a contract with a private company to manage one of its schools. Because I believe that the Public School Code does not grant such authority, I would affirm the Commonwealth Court.
*347 The majority first concludes that the preliminary injunction should not have been issued because the record does not establish the grounds upon which an injunction would properly be issued. The insufficiency of the record is attributed to the chancellor’s failure to hold an evidentiary hearing in connection with the issuance of the injunction. However, in passing upon the correctness of the chancellor’s decision, the majority ignores the fact that the Board has already entered into a contract with Alternative Public Schools, Inc. (“APS”), and further, that APS is currently managing the Turner School. Assuming arguendo that the chancellor erred in failing to grant an evidentiary hearing, I believe that this question is moot in view of the events that have transpired since the issuance of the preliminary injunction.
Although this Court assumed plenary jurisdiction of this case, the majority has failed to seize the opportunity to resolve the underlying legal question of whether the Board has the authority to contract with APS under the Public School Code. Consequently, the majority’s remand of this case not only forecloses a prompt determination of the legal question presented but also impedes the ultimate resolution of this case.
Additionally, I strongly disagree with the basis upon which the majority has directed the trial court to reexamine this case on remand. The majority correctly states that “our jurisprudence normally requires that we address questions of law before constitutional questions .. .,” but then inexplicably disregards this principle in order to conclude that the Public School Code would be unconstitutional if the Board proves those facts which it has alleged in its brief to this Court. The majority understandably does not advance any identifiable reason for deviating from the correct analytical framework because its direction to the trial court is clearly inconsistent with well-established legal principles.
A school district is a creature of the legislature and therefore has only those powers that are granted to it by statute. 24 P.S. § 2-211; Chartiers Valley Joint Schools v. County Bd. of School Directors of Allegheny County, 418 Pa. 520 , 211 A.2d 487 (1965). A review of the Public School Code reveals *348 numerous instances where the General Assembly has explicitly authorized the use of private contractors to provide educational and student-related services: 24 P.S. § 5-504(a) (“The board of school directors in any school district shall have the power to ... contract for any services necessary for the operation of a food service program....”); 24 P.S. § 5-523(e) (“[BJoards of school directors of any school district ... may contract for educational broadcasts for children or adults....”); 24 P.S. § 9-964.1(a) (“[L]oeal school districts shall have the power to contract with private residential rehabilitative institutions for educational services to be provided to children as part of any rehabilitative program required in conjunction with the placement of a child in any such institution.... ”); 24 P.S. § 13-1362 (“The free transportation of pupils ... may be furnished by using ... private conveyances ... or other common carriers.... ”); 24 P.S. § 13-1376(c) (relating to costs of tuition and maintenance of certain exceptional children for which approved private schools may be reimbursed); 24 P.S. § 14-1410 (“For special examinations recommended by school physicians, school districts ... may engage the services of ophthalmologists or other licensed medical specialists or of optometrists.”); 24 P.S. § 15-1547(a)(2) (“School districts may utilize any appropriate ... private materials, personnel and other resources in developing and implementing [an alcohol, chemical and tobacco instructional abuse program].”); 24 P.S. § 24-2401(4) (“Any school district of the second, third, or fourth class and any joint school board may employ an independent auditor who shall be a certified public accountant or competent public accountant----”); 24 P.S. § 24-2409 (“In all school districts where the accounts are audited by borough or township auditors, the auditors may employ an attorney whenever the same is deemed advisable.”).
The foregoing examples clearly illustrate that the General Assembly has contemplated and provided for specific situations where a school board or school district may enter into a contract with a private entity to provide services for the efficient administration of public education. These references *349 to a school board’s authority to contract make it clear that the General Assembly intended to delegate this power only in those instances where it expressly indicated. The Board contends that the Public School Code confers the power to enter into the contract with APS by necessary implication. However, in view of the manner in which the General Assembly has conferred the power to contract with private entities in the various sections of the Public School Code, I do not believe that the Board has the power to enter into a contract with APS. Moreover, it is the Board that must come forward with some specific provision of the Public School Code which, by necessary implication, allows the Board to enter into the contract with APS. It is my belief that there are no such provisions in the Public School Code. While the Board suggests that there exist general rights that include the right to privatize the responsibilities bestowed upon them by the General Assembly, this suggestion is unsupported by the Public School Code.
Specifically, the Board argues that several sections of the Public School Code impliedly authorize the Board to enter into the contract with APS. The Board points to 24 P.S. § 2-211 (which vests school districts with “all necessary powers to enable them to carry out the provisions of [the Public School Code].”); 24 P.S. § 5-501 (which requires that school districts “shall establish, equip, furnish, and maintain a sufficient number of elementary public schools....”); 24 P.S. § 5-502 (which allows school districts to “establish, equip, furnish, and maintain ... additional schools or departments for the education and recreation of persons residing in [the] district....”); and 24 P.S. § 11-1124(2) (which allows school districts to suspend employees as a result of the “[c]urtailment or alteration of the educational program.... ”).
I am nevertheless unpersuaded that any of these sections, or any other sections in the Public School Code, authorize the Board to enter into the contract with APS by necessary implication. These sections simply do not meet the Board’s assertions. In addition, 24 P.S. § 11-1106 undercuts the Board’s position that its responsibility to manage the Turner *350 School can be delegated by necessary implication. That section provides that “[t]he board of school directors in every school district shall employ the necessary qualified professional employes, substitutes and temporary professional employes to keep the public schools open in their respective districts in compliance with the provisions of [the Public School Code].” 24 P.S. § 11-1106 (emphasis added). In my view, this section expressly places the duty to hire teachers on the school board and negates any inference to the contrary. Thus, not only has the Board failed to offer some provision of the Public School Code which confers upon the Board the power to enter into the contract with APS by necessary implication, there is support in the Public School Code for the opposite conclusion.
By proceeding to address an issue of purportedly constitutional dimension, 1 the majority conveniently fails to offer any explanation as to how the Board possesses the authority to contractually delegate its obligation to manage the Turner School to a private company. The factual illustrations cited by the majority clearly portray a school district in a state of crisis. I emphatically share the majority’s concern for the welfare of the children that must endure a system which yields such ghastly results. I am nevertheless constrained to conclude that without an express grant of authority from the General Assembly, the Board can not contract with APS for the management of the Turner School. 2
CAPPY, J., joins in this dissenting opinion.
. Based on my conclusion that the Public School Code does not authorize the Board to contract with APS, there is no need to address the constitutional issue raised by the majority. However, I find the majority’s reasoning on this point to be specious and wholly unpersuasive.
. The majority’s decision today also raises substantial questions concerning the frustration of the statutory scheme as it applies to the tenure provisions of the Public School Code, 24 P.S. § 11-1121 et seq, an issue which the chancellor may have to address upon remand. As employees of a private company, the teachers of APS could conceivably be considered "at-will” employees who would not have the protections against wrongful discharge that the legislature clearly intended to provide.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9763185. Public record. Not legal advice.