PHILADELPHIA – A federal judge recently ruled that a Bucks County man would be granted a permanent injunction against enforcement of the provisions of Section 17.2 of Pennsylvania’s Educator Discipline Act – a statute which he felt criminalized the disclosure of truthful information connected to the filing of an educator misconduct complaint with the Commonwealth’s Department of Education – while that same plaintiff also seeks more than $64,000 in legal fees from the Bucks County District Attorney.
John Doe first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Aug. 23 versus now-former Bucks County District Attorney Matt Weintraub and Pennsylvania Attorney General Michelle Henry.
(Current Bucks County District Attorney Jennifer Schorn was substituted as a defendant in place of Weintraub, on Jan. 10.)
“On June 26, 2023, Doe submitted an educator misconduct complaint with the Pennsylvania Department of Education via the Department’s online portal. The misconduct complaint was filed against an individual employed by a public school district located in Bucks County,” the suit said.
“The online form maintained by the Department contains the following statement: The educator misconduct complaint process is confidential and any unauthorized release of confidential information is a misdemeanor of the third degree. All information relating to complaints must remain confidential unless or until public discipline is imposed. Thus, the filing of a complaint, the Department’s investigation of a complaint and the disposition of the complaint prior to the imposition of public discipline, as well as any and all information learned as a result of the Department of Education’s investigation, is strictly confidential.”
The suit added that the cited section of the Educator Discipline Act states that, “Except as otherwise provided in this Act, all information relating to any complaints or any proceedings relating to or resulting from such complaints, including the identity of the complainant, shall remain confidential, unless or until discipline is imposed, other than a private reprimand or a supplemental sanction deemed private by the commission, any provision of law to the contrary notwithstanding unless otherwise specified in this Act” – and further, that “any person who releases or gives out information deemed confidential under this Act, without authorization of the commission or as authorized by this Act, commits a misdemeanor of the third degree.”
“On July 22, 2023, the Department sent a letter advising Doe that it would take no action on his complaint and would dismiss Doe’s complaint against the public educator. The letter went on to state, ‘In closing, I must inform you that the Educator Discipline Act provides that any unauthorized release of confidential information is a misdemeanor of the third degree,” the suit stated.
“Doe desires to disclose the fact that he filed the misconduct complaint, publish the contents thereof, and further disclose the communication he received from the Department with the Department’s refusal to take action against the educator that was the subject of his misconduct complaint. However, due to the Act’s criminal penalties for disclosure of any information about the filing and disposition of the misconduct complaint, Doe fears prosecution if he should publish such information and publicly criticize the Department for its failure to take action.”
Though the Act contains a provision by which a citizen may seek a release of information, via petition, from the scope of the Act’s prohibition on disclosure, the suit continues that “this provision of the Act is unconstitutional, because it imposes on private citizens desiring to speak about matters concerning the workings of government the burden of obtaining prior approval from the government itself in advance of speaking and disclosing information deemed confidential under the Act.”
“Thus, even with the Just and Proper Clause, the Act still violates the First Amendment in imposing subsequent penal sanctions on citizens such as Doe who wish to engage in speech about, and publish documents concerning, the filing of educator misconduct complaints and the Department’s handling thereof. Doe has no adequate remedy at law,” the suit said.
On Sept. 8, the plaintiff filed a motion to continue proceeding anonymously in his case and for leave to file unredacted exhibits associated with it under seal, in order to “preserve the confidentiality of his identity and prevent certain individually identifiable information from being made public.”
Despite the defendants providing in a preliminary hearing that they did not oppose the motion as to either component, U.S. District Court for the Eastern District of Pennsylvania Judge Karen S. Marston ruled in a Nov. 16 memorandum opinion that while Doe may continue to proceed anonymously, he was not to file unredacted versions of the exhibits under seal.
According to Marston, this was because motions to proceed anonymously and to file exhibits under seal “intrude on the public’s right of access to judicial proceedings, [and as such] the Court cannot grant them as unopposed without further analysis.”
UPDATE
In response to cross-motions for summary judgment from all parties involved in the case, Marston issued a sprawling memorandum opinion on Jan. 10 – which found that 1) Henry’s motion for summary judgment would be granted due to her position’s absolute immunity from suit and she was dismissed from the case; 2) Schorn’s motion for summary judgment would be denied, since the Educator Discipline Act was unconstitutional under the First Amendment and 3) Doe’s motion for summary judgment would be partially granted with respect to Schorn, and partially denied with respect to Henry (for the above-stated reasons).
This meant that Section 2070.17b(a) and (b) of Pennsylvania’s Educator Discipline Act was ruled as “unconstitutional as applied to Doe in connection with his June 22, 2023 misconduct complaint, and Schorn was permanently enjoined from bringing criminal sanctions against the plaintiff for publicly disclosing the fact that he filed the misconduct complaint, the nature of that complaint and the Department’s disposition of that complaint, including the Department’s July 26, 2023 letter.”
“Plaintiff argues that the Act’s confidentiality requirement is unconstitutional as applied to him, because it is a content based restriction on speech that does not satisfy strict scrutiny. The District Attorney counters that the Act passes muster under the First Amendment because it is a content-neutral provision that survives intermediate scrutiny. The Court agrees with plaintiff that the Act imposes a content-based restriction that cannot survive strict scrutiny,” Marston said.
“First, the District Attorney fails to fully grapple with plaintiff’s as-applied challenge. Here, plaintiff wishes to disclose the fact that he filed a misconduct complaint and that the Department refused to take further action in connection with that complaint. All parties agree that plaintiff could lawfully disclose the underlying conduct by the school employee, which was previously known by him and was not learned solely through the investigative process. Second, the District Attorney’s argument, which focuses on the purpose of the confidentiality requirement, asks the Court to skip the first step of the analysis – whether the law is content neutral on its face. The confidentiality provision is content based on its face – distinguishing between investigations that result in discipline and those that do not – so we need not consider the Act’s purpose. Because the statute imposes a content based restriction on speech, it is subject to strict scrutiny.”
Marston utilized a three-pronged analysis for the criterion of strict scrutiny, where a statute must: (1) Serve a compelling governmental interest; (2) Be narrowly-tailored to achieve that interest; and (3) Be the least restrictive means of advancing that interest.
“Here, the only government interest identified is ‘the privacy of students and teachers involved in a confidential administrative process.’ The parties dispute whether this interest is ‘compelling.’ To the contrary, the Act appears both over- and under-inclusive for protecting the identities of the individuals involved in the administrative process. It is over-inclusive because it does not merely limit the release of names, but instead, broadly prohibits disclosure of any information related to the filing of a complaint,” Marston said.
“And the Act is under-inclusive because in most circumstances when discipline is imposed, the Act allows educators’ and students’ identities to be released. The District Attorney has not explained why the privacy interests of educators and students – particularly the Commonwealth’s interest in protecting the identities of minors – are of less importance if discipline is imposed. Likewise, the Act allows the disclosure of facts underlying a misconduct complaint, including the identities of educators and students, when those facts are independently known.”
Marston added that given these inconsistencies, Schorn “has not shown that the Act is narrowly tailored to protect the identities of educators and minors involved in the administrative process” – nor was it shown “that criminal sanctions represent the “the least restrictive means among available, effective alternatives” for protecting the privacy of educators and students.”
“Because the Act does not satisfy strict scrutiny, it is unconstitutional as applied to Plaintiff, and the District Attorney ‘may not apply it to stop or punish [plaintiff] for publishing’ the fact that he filed a misconduct complaint and the Department’s disposition of that complaint. Accordingly, the Court considers whether a permanent injunction is an appropriate means of remedying the constitutional violation,” Marston stated.
Marston also found, after a four-prong analysis, that a permanent injunction against Schorn from enforcing the Educator Discipline Act was appropriate.
“Plaintiff does not challenge his ability to discuss the facts underlying his misconduct complaint, and instead challenges the Act to the extent it prohibits him from discussing the fact that the filed a misconduct complaint in connection with those facts and the Department’s resolution of that complaint. Because that prohibition violates the First Amendment as applied to him, plaintiff has suffered an irreparable harm. The District Attorney also confusingly argues that plaintiff cannot have suffered irreparable harm because the claims ‘in his complaint to this Court and his educator misconduct complaint, are speculative and hypothetical.’ On this issue, the District Attorney focuses on the injury that plaintiff alleged that he suffered at the hands of the school employee in the educator misconduct complaint. But this also misses the mark. The facts of plaintiff’s misconduct complaint are largely immaterial to the analysis, just as it is immaterial whether the Department appropriately dismissed the misconduct complaint. Here, the Court is concerned only with whether plaintiff has a First Amendment right to discuss that disposition. Because he does, and because the confidentiality requirement violates that right, he has suffered irreparable harm,” Marston said.
“The second factor – the inadequacy of legal remedies – also supports entry of a permanent injunction. The District Attorney does not dispute that this factor supports an injunction. Third, a balance of the hardships shows that they weigh in favor of injunctive relief. The District Attorney notes that disclosure of the complaint in this case would result in disclosure of ‘plaintiff’s identity, perhaps family members’ identities, plaintiff’s position in public life, school-aged children, and a public school employee – who is not a party to the lawsuit.’ But as noted previously, plaintiff could lawfully disclose that information under the Act because it was previously known to him. Here, plaintiff is concerned with his ability to disclose the fact that he filed a misconduct complaint and the Department’s disposition. The District Attorney has not shown that the identified privacy concerns outweigh the hardships that the Act imposes on plaintiff’s First Amendment rights. Finally, the Court finds that the public interest weighs in favor of an injunction.”
As the prevailing party, Doe then filed a motion for attorney’s fees and non-taxable expenses against Schorn, pursuant to Federal Rule of Civil Procedure 54(d)(2), in the total amount of $64,012.61. This is comprised of $63,820.87 in legal fees and $191.74 in reasonable, related non-taxable expenses.
The plaintiff is represented by Aaron D. Martin and Sarah E. Straub of Mette Evans & Woodside, in Harrisburg.
The defendants are represented by Kevin R. Bradford of the Pennsylvania Attorney General’s Office – Civil Division, also in Harrisburg, plus Keith J. Bidlingmaier of Bidlingmaier & Bidlingmaier, in Langhorne.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-03252
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com