ALLENTOWN – Salisbury Township School District and its superintendent argue that a lawsuit alleging they denied two minor students equal access to its public schools contains nothing more than “vague and conclusory statements” to support claims that they violated federal law.
A.H. and E.S. (minors, by their parent, Madelin Hernandez) of Lehigh County first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on April 20 versus Salisbury Township School District and Randy Ziegenfuss (in his individual capacity), both of Salisbury Township.
“In the fall of 2019 and winter of 2020, plaintiffs lived doubled-up with their aunt within the bounds of defendant District. In or about November 2019, defendant District received information that A.H. and E.S. were living with their mother at a location outside of the District. Defendant District, during November and December 2019 and at the direction of defendant Ziegenfuss, conducted a residency investigation of plaintiffs,” the suit stated.
“On information and belief, that residency investigation established that A.H. and E.S. lacked a stable home and were living the majority of the time doubled-up with their aunt within the bounds of the District. Despite the residency investigation’s conclusion, in January 2020, defendants declared that A.H. and E.S. were no longer residents of the District and removed A.H. and E.S. from their schools of origin. Plaintiffs demanded immediate re-enrollment in the District. Defendants refused.”
In February 2020, plaintiffs, through counsel, demanded plaintiffs’ immediate re-enrollment in the District pursuant to the McKinney-Vento Act. After further delaying their re-enrollment for a period of days and demanding proof of residency documentation – all in contravention of the McKinney-Vento Act – the District re-enrolled A.H. and E.S. in its schools.
According to the suit, both plaintiffs have experienced feelings of alienation, been ostracized by peers, and lost their enthusiasm for their education. Plaintiff A.H. in particular has experienced lasting harms, including depression, anxiety, withdrawal from peers and family, disrupted sleep, disrupted appetite, and feelings of panic. The District’s own psychologist has determined that this exclusion from school appears to have caused A.H. emotional harm.
The suit added plaintiffs A.H. and E.S. have, in short, experienced exactly the kind of disruption that the McKinney-Vento Act was written to avoid.
“Defendants removed plaintiffs from school despite being aware that they were living doubled-up, and therefore homeless. Defendants then failed to ensure plaintiffs’ immediate re-enrollment. They also failed to explain the dispute resolution process to plaintiffs or help them use it. And defendants did all of these things willfully and deliberately in disregard of the McKinney-Vento Act and its well-established definition of homelessness,” per the suit.
“As a result of defendants’ actions and omissions, A.H. and E.S. were denied the protections and entitlements of the McKinney-Vento Act, including immediate enrollment pursuant to the Act’s pendency requirement, and enrollment in their school of origin for the duration of his homelessness.”
UPDATE
The defendants filed a motion to dismiss the complaint on July 9, putting forth its view that the plaintiffs have not properly pled their claim that it violated federal law and denied them access to Salisbury Township schools.
“The complaint is riddled with conclusory, vague statements that fail to establish a violation of McKinney-Vento Homeless Assistance Act committed by defendants. Specifically, plaintiffs fail to allege facts to support that the children meet a definition of ‘homeless’ as defined in the Act. Pursuant to the Act, one definition of ‘homeless’ includes a child who is sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason,” the dismissal motion stated.
“Although plaintiffs state that they are living in the house of another, they do not state the reason for the same, which is integral to the definition of ‘homeless.’ To allow children who live in the house of another to meet this definition of homeless would result in an influx of enrollment for desirable districts. Absent sufficient reasoning as required in the Act, claiming a child is homeless is not enough to survive a motion to dismiss as the same fails to state a claim upon which relief can be granted.”
The defendants added that proceedings regarding the plaintiffs’ eligibility for access to the schools did take place.
“It is notable that there were prior court/administrative proceedings related to the Children's residency within the School District. Specifically, the Board of the School District held a residency hearing wherein Hernandez claimed the children were living with their aunt within the School District during the same time period alleged herein,” the dismissal motion said.
“After hearing testimony and reviewing exhibits, the hearing officer determined that the children were not residents of the School District. Therefore, even if plaintiffs had pied facts to support their reason for living doubled up, it has already been determined that they are not actually living doubled up.”
The defendants further cited the doctrine of qualified immunity for Ziegenfuss, arguing that the plaintiffs failed to allege a factual or legal reasoning to hold him personally liable for his actions as the superintendent of the School District.
For counts of violating the McKinney-Vento Act and 42 U.S.C. Section 1983, the plaintiffs are seeking compensatory damages in the amount of $8,625 for plaintiff A.H.’s loss of education during the 23 days that she was denied a full and free education under Pennsylvania law; compensatory damages in an amount to be determined at trial for the emotional harms suffered by plaintiff A.H. as a result of her exclusion from school; an award of punitive damages in an amount to be determined at trial; an award of attorney’s fees and costs and such other relief as the Court deems appropriate.
The plaintiffs are represented by Michael D. Raffaele of Raffaele & Associates, in Bryn Mawr.
The defendants are represented by John E. Freund III and Kristine Roddick of King Spry Herman Freund & Faul, in Bethlehem.
U.S. District Court for the Eastern District of Pennsylvania case 5:21-cv-02082
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com