Archer et al v. York City School District et al
MEMORANDUM (Order to follow as separate docket entry) (eo)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID L. ARCHER, et al.,
YORK CITY SCHOOL DISTRICT, et al., :
Hon. John E. Jones III
December 28, 2016
Plaintiffs are students and parents of students formerly enrolled at New
Hope Academy Charter School (“New Hope”). Defendants are the York City
School District (“the District” or “the City School”), five members of the Board of
Directors for the School District of the City of York (“the Board”), and certain
administrative personnel presently and formerly employed by the District (“the
Administration Defendants”), including Eric B. Holmes, the current
Superintendent of the District; Deborah Wortham, the former Superintendent;
Mindy Wantz, the District Secretary and Right to Know Officer; and Valerie
Perry-Cross, the former Assistant Superintendent for Pupil and Personnel Services.
Plaintiffs commenced this action, asserting various legal claims in protest of
the Board’s decision not to renew New Hope’s charter. Presently pending before
this Court is Defendants’ Motion for Summary Judgment. (Doc. 129). For the
reasons set forth below, we shall grant Defendants’ Motion for Summary Judgment
The York City School District
New Hope was a charter school located in the city of York, Pennsylvania,
within the jurisdiction of the York City School District. Children within the York
City School District suffer disproportionate financial disadvantage when compared
to the rest of York County, with about 81.3% of students identified as
economically disadvantaged by the Pennsylvania System of School Assessment
(“PSSA”). (Doc. 69, ¶ 66). Students within the District boundaries largely do not
meet state academic standards, and test scores have fallen over time. (Id. ¶¶ 6769).1 From 2009 to 2011, 263 students dropped out of York City schools. (Id. ¶
With the City School in marked decline, more and more students were
choosing charter schools instead of public schools. (Id. ¶ 72). In the 2012-13
academic year, there were 7,658 students enrolled within the District, with 62.7%
of those students attending York City schools and 31.8% attending charter or nonpublic schools. (Id. ¶ 65). According to Plaintiffs, the City School District has
Plaintiffs offer that, in 2005, 51% of York City School District students attained a score of
proficient or above in math, and 65% scored proficient or above in reading. (Doc. 69, ¶ 69). By
2012, scores had worsened, with 32% scoring proficient or above in math, and 33% scoring
proficient or above in reading. (Id.).
recognized that continued tuition payments to charter schools will cast the District
into dire financial straits. (Id. ¶ 73).
In December 2012, the Commonwealth of Pennsylvania declared the York
City School District to be financially distressed. (Id. ¶¶ 116, 118). Some District
officials publicly attributed the financial drain on the District to charter schools.
For instance, at a 2011 school board meeting, one official urged that the District
must “go to war” with charter schools, remarking that “[w]e have to build our
campaign [against] charter schools.” (Id. ¶ 181). Also in 2011, the then-president
of the Board of School Directors expressed that “one of the reasons why this
budget is so out of whack is the loss of our students [to charter schools].” (Id. ¶
180). Also, on November 14, 2013, a District representative commented that, “if
New Hope were to remain open indefinitely, it could adversely affect the district’s
financial recovery plan . . . .” (Id. ¶ 185 (emphasis omitted)).
On December 12, 2012, Chief Recovery Officer David G. Meckley was
appointed to develop a Financial Recovery Plan for the District. (Id. ¶¶ 117-18).
Meckley issued his report on May 15, 2013, revealing that in 2011-2012, the
District’s tuition payments to charter schools totaled $24.8 million. (Id. ¶¶ 119,
122). In 2012-2013, 25.1% of the District’s budget was allocated for charter
school educational costs. (Id. ¶ 123). Meckley’s report concluded that the District
must reduce or reverse payments to charter schools to avoid financial ruin,
estimating that, if the District continued on the same course, it would have an
annual $17 million deficit and debt exceeding $55 million by 2018. (Id. ¶¶ 12426).
New Hope Academy Charter School
New Hope’s charter was first approved on March 12, 2007, with an effective
date of July 1, 2007. (Id. ¶ 81).2 The charter provided that for its “measurable
academic goals and objectives,” New Hope was to strive to ensure that “[t]he
student will meet the proficient level in language arts and mathematics.” New
Hope Acad. Charter Sch. v. Sch. Dist. of the City of York, 89 A.2d 731, 733 (Pa.
Commw.Ct. 2014) (citing New Hope Charter and Charter Application at 15).
“New Hope’s charter also provided that achievement of its goals and objectives
would be measured by the Pennsylvania System of School Assessment (PSSA),
stating that ‘scores from PSSA will be used to measure the student progress in
regards to the State Standards.’” Id.3
New Hope began by serving grades 7 and 8. By the time of its dissolution in
June 2014, New Hope had incrementally expanded to serve grades 5 through 12
New Hope’s charter was approved pursuant to the Charter School Law, Act of March 10,
1949, P.L. 30, added by the Act of June 19, 2997, P.L. 225, as amended, 24 P.S. §§ 17-1701-A—
17-1751-A. See New Hope Acad. Charter Sch. v. Sch. Dist. of the City of York, 89 A.2d 731, 733
n.1 (Pa. Commw.Ct. 2014).
While New Hope’s charter was not provided as a matter of record in the instant case, it was
apparently provided to the Pennsylvania Commonwealth Court and reproduced in that court’s
opinion’s facts section. Because we find the information relevant to the instant matter, we
include it here as well.
and enrolled approximately 800 students. (Doc. 69, ¶¶ 77, 81, 89). Throughout
New Hope’s growth, marked by various successful applications to amend its
charter to add new grade levels and programming, the District never expressed any
concerns to New Hope regarding New Hope’s administration or academics. (Id. ¶¶
84, 86, 88, 90, 92). In fact, during a site visit on May 22, 2012, then-Pennsylvania
Secretary of Education Carolyn Dumaresq praised New Hope for its exceptional
facilities and stewardship of public monies. (Id. ¶¶ 93-95). Defendants emphasize,
however, that in approving the amendments to New Hope’s charter, the District
“did not conduct a comprehensive review of New Hope’s operations.” (Doc. 130,
In Plaintiffs’ view, charter schools have provided hope to parents whose
children previously have had to attend the failing City School and who cannot
afford to relocate or send their children to private school. (Doc. 69, ¶¶ 139-41).
For example, Plaintiffs submit that New Hope’s graduation rate for 12th grade
students was consistently at or above 91%, compared to the City School’s
graduation rate of 74%. (Id. ¶¶ 99, 142). A number of New Hope seniors were
granted full scholarships at state universities based on their class rank, and New
Hope graduates were awarded over $1 million annually in merit scholarships. (Id.
Plaintiffs deny this fact and argue that the District conducted an “exhaustive review” each time
New Hope sought to amend its charter. (Doc. 134, ¶ 22).
¶¶ 144-45). Plaintiffs also feel that New Hope was safer than the City Schools.
(Id. ¶ 146).
Defendants generally disagree with this characterization of New Hope.
They stress that New Hope’s students’ “PSSA scores” 5 were “generally lower”
than the scores of students who attended the District’s schools. (Doc. 130, ¶ 40).
New Hope also failed to achieve Adequate Yearly Progress (“AYP”) during any of
the academic years that New Hope operated. AYP represents a measurement of
student progress established by the No Child Left Behind Act of 2002. (Doc. 130,
¶ 46). It measures schools by the scores their students achieve on the PSSA but
also provides “safe harbor and growth methods based on reductions in the
percentage of non-proficient students and improvements on scores toward
proficiency.” New Hope, 89 A.2d at 734. Unlike New Hope, some District
schools have sporadically achieved AYP at different times throughout their
operation. However, Plaintiffs stress that not a single school within the York City
School District has ever met the AYP minimum performance standards. (Doc.
134, ¶¶ 44-46).6
In fall 2011, New Hope hired an education consultant, Dr. Michael Clemens.
New Hope, 89 A.2d at 734. Dr. Clemens was retained to help New Hope improve
The Pennsylvania System of School Assessment (“PSSA”) is a set of standardized tests
administered annually in Pennsylvania schools. (Doc. 130, ¶ 39; doc. 134, ¶ 39).
Where a school fails to meet AYP on average more than four out of every five years it is in
operation, that school fails to meet the minimum performance standards. (Doc. 134, ¶¶ 45-46).
its academic performance. Id. He concluded that New Hope “was weak in the
areas of ‘curriculum, instruction, and assessments aligned with state standards,’
‘the frequent monitoring of learning and teaching,’ ‘and ‘focused professional
development.’” Id. (quoting Board Opinion at 29; School Board C.R. February 29,
2012 H.T. at 86-87, R.R. at 298a-299a). Ultimately, Dr. Clemens determined that
New Hope’s curriculum was “not aligned with Pennsylvania state academic
standards as required by 22Pa. Code Chapter 4.” Id.; (doc. 130-29, p. 5).
Nonrenewal and the Administrative and Judicial Process
In 2011, New Hope applied for the renewal of its charter. (Doc. 130, ¶ 37;
doc 134, ¶ 37). On January 30, 2012, the New Hope Board of Trustees received
notice that the school’s request to renew its charter had been denied and that
nonrenewal proceedings would commence. (Doc. 69, ¶ 97; Doc. 73-1, p. 1). The
notice included a list of “Preliminary Reasons For Non-Renewal of Charter” which
Plaintiffs characterize as “vague and ambiguous,” stating that it did not provide the
details necessary for Plaintiffs to participate in the District’s adjudication. (Doc.
134, ¶ 51; doc. 69, ¶ 160). According to Defendant School Board President
Margie Orr, the Administration initiated the nonrenewal process and not the Board.
(Doc. 69, ¶ 151).7
Pursuant to the Pennsylvania Charter School Law, it is the local board of school directors that
has the authority to revoke or not renew a charter. See 24 P.S. § 17-1729-A(a). Defendants have
clarified that in their District, when a charter school applies for a renewal of its charter, the
It is Plaintiffs’ belief that prior to sending the notification, individual
Defendants had already determined not to renew New Hope’s charter, and, as such,
the non-renewal proceedings that followed were a sham. (Id. ¶ 100). Plaintiffs
centrally highlight that, prior to the initiation of nonrenewal proceedings, thenSuperintendent Wortham directed that the administration form a committee to
create a “Checklist of Possible Reasons for Charter Denial” to effectuate the
closure of New Hope. (Id. ¶ 105). Defendants agree that Superintendent Wortham
requested that members of the Administration conduct a “second review” of New
Hope’s renewal application. (Doc. 130, ¶ 48). Former Assistant Superintendent
Perry-Cross chaired the committee. (Id. ¶ 49; doc. 69, ¶ 106). Defendant Miller, a
School Board member, attended the meetings but never disclosed his participation.
(Doc. 69, ¶ 109).
On January 9, 2012, Perry-Cross sent an email with the subject “Checklist of
Possible Reasons for Charter Denial.” (Doc. 69, ¶ 111). The committee met
secretly, did not publicize its findings, and never provided New Hope with its
checklist. (Id. ¶¶ 107-08, 112). Defendants, however, argue that the meeting was
not “secret”—rather Defendants were under no obligation to inform New Hope of
the Administration’s meetings or their purpose. (Doc. 135, p. 8). Only meetings
Administration first reviews the application and then makes a recommendation to the Board
regarding whether to renew the charter. (Doc. 130, ¶ 36).
of the Board and those conducted pursuant to New Hope’s non-renewal hearings
and proceedings are subject to the Sunshine Act. (Id.).
As asserted in their Complaint, Plaintiffs allege that the District, including
the Board and administration, retained Levin Legal Group for the purpose of
forming a committee to shut New Hope down. (Doc. 69, ¶ 130). To this end,
Plaintiffs allege Attorney Allison Petersen met in private with the Board and
administration, advising that they must carry out nonrenewal proceedings as a
formality. (Id. ¶ 133). Defendants entirely disagree with Plaintiffs’
characterization of events, and instead allege that the Levin Legal Group was hired
to assist the District with charter school issues generally, including the evaluation
of several applications for the creation and establishment of new charter schools.
Defendants aver that Attorney Petersen advised the Board that she could not
discuss the New Hope nonrenewal proceedings with them until after they voted on
the matter. (Doc. 130, ¶¶ 52-54).
On February 16, 2012, the District issued an Amended Nonrenewal Notice
with the following charges: violation of the school’s charter because of failure of
students to meet minimum proficiency in reading and mathematics; violation of the
school’s charter by accepting students beyond the first 10 days of each quarter;
failure to meet the requirements for student performance as set forth in the
Pennsylvania Administrative Code; violation of No Child Left Behind by failing to
make annual yearly progress, or AYP; noncompliance with attendance reporting
requirements; violation of Pennsylvania law or administrative guidance related to
placement of students at alternative education facilities, specifically Challenge
Academy; and violations of the Pennsylvania Non-Profit Corporation Act and the
Public Official and Employee Ethics Act with respect to the role and actions of
Isiah Anderson, the school’s founder, as related to the for-profit entities owned or
controlled by him, including Challenge Academy. (Doc. 73-1, pp. 1-3).
Plaintiffs express that many of the stated allegations existed at the time the
District granted amendments to New Hope’s charter but were never raised; that
none of the concerns have any substantive merit; and that all of the allegations
were contrived as a predetermined excuse to dissolve New Hope’s charter. (Doc.
69, ¶¶ 172-74).
Following the issuance of the Amended Nonrenewal Notice, nonrenewal
proceedings were held over seven evenings in February and March 2012. (Doc.
130, ¶ 55; doc. 134, ¶ 55). At the school board meeting of July 18, 2012, the
Board resolved not to renew New Hope’s charter by a vote of 5-0. (Doc. 73-1, p.
5). The Board issued a 77-page Adjudication on August 15, 2012, including
findings of fact and conclusions of law, in support of its decision. (Id. at pp. 1-77).
New Hope appealed the Board’s decision, and, on October 29, 2013, the
Pennsylvania State Charter School Appeal Board (“CAB”) issued a 51-page
Opinion finding that the nonrenewal of New Hope’s charter was proper. (Doc. 732). The accompanying Order specified that the decision upholding nonrenewal
would become effective on January 15, 2014, to allow New Hope students to
complete the fall term of the 2013-2014 academic year. (Id. at p. 52). In the
Opinion, the CAB specifically determined that New Hope had received adequate
notice of the grounds for nonrenewal. (Id. at pp. 20-22). It explained that the
Pennsylvania Charter School Law requires that a charter school be apprised of the
reasons for nonrenewal “with reasonable specificity,” 24 P.S. § 17-1729-A(c), and,
here, determined that the grounds stated in the Amended Nonrenewal Notice
complied with that directive. (Doc. 73-2, p. 20). The CAB further expressed that
“[i]t is clear from the record that New Hope received both adequate notice of the
grounds on which the School Board based its decision and the opportunity to
present witnesses and evidence on each of those issues” and found that “New
Hope’s due process rights were not violated.” (Id. at p. 22).
In terms of the substantive grounds underlying the nonrenewal decision, the
CAB found, among other things, that New Hope: (1) failed to meet student
performance requirements set forth in the Pennsylvania Administrative Code and
the school’s written charter; (2) materially violated the terms of its charter by
failing to meet academic standards and neglecting to follow admission/enrollment
policies provided therein; (3) violated laws governing enrollment procedures, the
placement of students in Alternative Education for Disruptive Youth (“AEDY”)
programs, and truancy and student attendance reporting; and (4) along with its
related entities/officials, contravened the Ethics Act by failing to file Statements of
Financial Interest and engaging in conduct which constituted a conflict of interest.
(Id. at pp. 14-16; 25-51).
Thereafter, New Hope filed an Application for Stay, and the CAB issued an
order on November 21, 2013, granting a stay until June 4, 2014, which allowed
New Hope students to complete the 2013-14 academic year. (Doc. 73-3). On
November 26, 2013, New Hope filed a Petition for Review of the CAB’s decision
in the Pennsylvania Commonwealth Court. The Commonwealth Court issued a
decision on the merits on April 8, 2014, affirming the CAB’s ruling. See New
Hope Acad. Charter Sch. v. Sch. Dist. of City of York, 89 A.3d 731 (Pa. Commw.
New Hope was forced to dissolve in June 2014.8
As an additional, final allegation, Plaintiffs state that Defendants improperly purged Wortham’s
and Perry-Cross’s emails. (Doc. 69, ¶¶ 207-08). Wortham’s emails were subsequently
discovered and Plaintiffs were notified of this development. (Doc. 135, p. 21). Defendants then
filed a stipulated Motion to Extend this Court’s Scheduling Order, which was granted to allow
for further discovery on March 1, 2016. (Doc. 116). Arguing that Defendants knew or should
have known of the pending litigation, Plaintiffs nonetheless continue to aver that Defendants are
responsible for spoliation of evidence regarding Perry-Cross’s emails. (Doc. 69, ¶¶ 211-13; doc.
133, pp. 25-29).
Plaintiffs filed a Complaint on November 19, 2013 (Doc. 1), centrally
contending that the rationales asserted by the Board for the nonrenewal of New
Hope’s charter were pretextual and that finances were the true motivator for the
school’s closure. (Id. ¶¶ 74-75). Plaintiffs advanced claims based on the
Procedural Due Process, Substantive Due Process, and Equal Protection Clauses of
the Fourteenth Amendment; conspiracy; the Due Process Clause of the
Pennsylvania Constitution; and Article I § 26 of the state charter.
Defendants filed a Motion to Dismiss (Doc. 17), and we issued a
Memorandum and Order on February 27, 2014, granting the motion. (Doc. 27).
We dismissed with prejudice Plaintiffs’ federal and state law claims based on
procedural and substantive due process, because Plaintiffs failed to allege a
deprivation of a protected interest. (Id. pp. 19-21, 32-33). However, we permitted
Plaintiffs to amend their pleading to reassert their equal protection and conspiracy
claims. (Id. at p. 35).
Plaintiffs filed an amended complaint on March 19, 2014 (Doc. 31), and
Defendants against moved to dismiss the pleading. (Doc. 35). The parties fully
briefed the motion, but before a decision could be rendered, Plaintiffs filed a
Motion for Leave to File a Second Amended Complaint on June 2, 2014, including
a proposed amended pleading. (Docs. 43, 43-4). The appended proposed pleading
added, among other things, new defendants (the Administration Defendants) and a
new legal claim (fraud). We granted leave to amend on September 10, 2014 (Doc.
67), but ordered Plaintiffs to revise their proposed amended pleading before
submitting it. We noted that the amended complaint, as drafted, spanned 430
numbered paragraphs and 84 pages, and we directed Plaintiffs to “pare down their
pleading to encompass a ‘short and plain statement’ showing their entitlement to
relief.” (Id. at p. 9 (quoting FED. R. CIV. P. 8(a)(2))).
After making revisions, Plaintiffs filed the operative Second Amended
Complaint on October 14, 2014. (Doc. 69). Relevantly, the amended pleading
added the four Administration Defendants and a claim for fraud (Count IV), as
well as new and expanded factual allegations. Plaintiffs also reasserted their
claims under the Equal Protection Clause of the Fourteenth Amendment (Count I);
for conspiracy in violation of 42 U.S.C. § 1983 (Count II); and pursuant to Article
I § 26 of the Pennsylvania Constitution (Count III).
Defendants filed another Motion to Dismiss on October 28, 2014. (Doc.
73). In the course of briefing, the parties agreed to the dismissal of Plaintiffs’
fraud claim. We ruled on the remainder of the pending issues, denying
Defendants’ Motion with regard to Plaintiffs’ equal protection claim, conspiracy
claim, and Pennsylvania constitutional claim. (Doc. 85). We also declined to
dismiss the new Defendants added pursuant to Plaintiffs’ operative Second
Amended Complaint. We granted Defendants’ Motion insofar as it related to
Plaintiffs’ request for compensatory damages under the Pennsylvania Constitution
and punitive damages against Defendants in their official capacities.
On March 18, 2015, Defendants filed an Answer to Plaintiffs’ Second
Amended Complaint. (Doc. 90). Several discovery disputes subsequently ensued
and were summarily resolved, and the Court twice granted Defendants’ Motions
for Sanctions to dismiss nonresponsive Plaintiffs from the case. (Docs. 96, 118).
The parties also engaged in an unavailing attempt to settle the matter. (Doc. 103).
On July 11, 2016, Defendants filed the currently pending Motion for
Summary Judgment. (Doc. 129). The Motion has been fully briefed (docs. 131,
133, 135) and is thus ripe for our review. As noted, the Motion shall be granted in
full and Plaintiffs’ claims dismissed for the reasons elucidated below.
STANDARD OF REVIEW
Summary judgment is appropriate if the moving party establishes “that there
is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(a). A dispute is “genuine” only if there is a
sufficient evidentiary basis for a reasonable jury to find for the non-moving party,
and a fact is “material” only if it might affect the outcome of the action under the
governing law. See Sovereign Bank v. BJ’s Wholesale Club, Inc., 533 F.3d 162,
172 (3d Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). A court should view the facts in the light most favorable to the non-
moving party, drawing all reasonable inferences therefrom, and should not
evaluate credibility or weigh the evidence. See Guidotti v. Legal Helpers Debt
Resolution, L.L.C., 716 F.3d 764, 772 (3d Cir. 2013) (citing Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
Initially, the moving party bears the burden of demonstrating the absence of
a genuine dispute of material fact, and upon satisfaction of that burden, the nonmovant must go beyond the pleadings, pointing to particular facts that evidence a
genuine dispute for trial. See id. at 773 (citing Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986)). In advancing their positions, the parties must support their
factual assertions by citing to specific parts of the record or by “showing that the
materials cited do not establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to support the fact.”
FED. R. Civ. P. 56(c)(1).
A court should not grant summary judgment when there is a disagreement
about the facts or the proper inferences that a factfinder could draw from them.
See Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010) (citing Peterson v. Lehigh
Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982)). Still, “the mere existence of
some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment.” Layshock ex rel. Layshock v.
Hermitage Sch. Dist., 650 F.3d 205, 211 (3d Cir. 2011) (quoting Anderson, 477
U.S. at 247-48) (internal quotation marks omitted).
The case at hand largely depends upon the strength of Plaintiffs’ claim under
the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution. Plaintiffs’ § 1983 allegations cannot survive unless they are
premised on an underlying constitutional violation,9 while the Pennsylvania
Supreme Court has concluded that Article I § 26 of the Pennsylvania Constitution
should be analyzed under the same standards used to evaluate federal equal
protection claims. See Small v. Horn, 722 A.2d 644, 672 n.13 (Pa. 1998). Mindful
of this important observation, we proceed to analyze the parties’ arguments
pursuant to the Equal Protection Clause.
In outlining their equal protection claim, Plaintiffs contend that New Hope
was – and Plaintiffs, by extension, were – treated differently from other similarly
42 U.S.C. § 1983 does not create substantive rights, but rather provides a federal cause of
action for the violation of a federal right. Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir.
2010) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)). To state a § 1983 claim, a
plaintiff must show that the offensive conduct was committed by a person acting under color of
state law and deprived the plaintiff of rights secured under the Constitution or federal law. See
Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir. 2005); Cahill ex rel. L.C. v. Live Nation, 512 Fed.
Appx. 227, 230 (3d Cir. 2013). Here, Plaintiffs’ § 1983 claim alleges that Defendants conspired
to deprive Plaintiffs of a constitutional right—equal protection under the laws.
situated charter schools. Plaintiffs further contend that Defendants can articulate
no rational basis for the difference in treatment.
The Equal Protection Clause of the Fourteenth Amendment commands that
“[n]o State shall . . . deny to any person within its jurisdiction the equal protection
of the laws.” U.S. CONST. amend. XIV, § 1. The Clause does not prohibit
differentiation among classes of persons, but rather restrains a state from “treating
differently persons who are in all relevant respects alike.” Nordlinger v. Hahn,
505 U.S. 1, 10 (1992) (citation omitted). Where a plaintiff does not allege
membership in a particular group, he or she may advance an equal protection
challenge on a “class of one” theory by proving that, (1) “she has been
intentionally treated differently from others similarly situated,” and (2) “there is no
rational basis for the difference in treatment.” Village of Willowbrook v. Olech,
528 U.S. 562, 564 (2000) (per curiam) (citations omitted). Plaintiffs here proceed
on the “class of one” theory.
Entities are similarly situated for purposes of the Equal Protection Clause
when they are alike “in all relevant aspects.” Startzell v. City of Phila., 533 F.3d
183, 203 (3d Cir. 2008) (quoting Nordlinger, 505 U.S. at 10) (internal quotation
marks omitted). In our Circuit, a plaintiff need not show that comparators are
identical in all relevant aspects but rather that they share pertinent similarities. See
Borrell v. Bloomsburg Univ., 955 F. Supp. 2d 390, 405 (M.D. Pa. 2013).
“Determining whether an individual is ‘similarly situated’ to another individual is a
case-by-case fact-intensive inquiry.” Id. (quoting Chan v. Cnty. of Lancaster, No.
10-3424, 2011 WL 4478283, at *15 (E.D. Pa. Sept. 26, 2011)) (internal quotation
Plaintiffs primarily focus on Helen Thackston Charter School (“Thackston”)
as an appropriate comparator entity.10 Thackston is a charter school within the
School District of the City of York that teaches grades 5-9. (Doc. 69, ¶ 166; doc.
131, p. 18).11 While Plaintiffs assert that Thackston’s students’ substantive
academic scores are equivalent to those of New Hope students (Doc. 69, ¶ 227),
Defendants rely on the PSSA scores of students from the respective schools to
show that Thackston students scored higher than both District and New Hope
students alike. (Doc. 130, ¶ 40). New Hope’s PSSA scores, by comparison, were
the lowest of all three schools. (Id.); New Hope, 89 A.2d at 733 (“New Hope’s
percentages of students scoring proficient on the PSSA have been lower than the
percentages of students scoring proficient in the School District’s schools in all
Plaintiffs also pled various allegations seeming to indicate that another school, Crispus
Attucks Youthbuild Charter School (“Crispus Attucks”), was similarly situated to New Hope.
Defendants explain that Crispus Attucks is a charter school in the city of York specifically
designed to educate former high school dropouts. (Doc. 130, ¶ 23). As such, its student body
and programming are unique from those of New Hope. Plaintiffs have not refuted Defendants’
allegations regarding Crispus Attucks’ unique programming. We therefore find that Crispus
Attucks is too dissimilar from New Hope and does not qualify as a valid comparator entity for
purposes of Plaintiffs’ equal protection claim.
As noted in the Factual Background (Section I.B) above, during its last years in operation,
New Hope taught grades 5-12. (Doc. 131, p. 18).
years that it has been in existence.”). Indeed, the percentages of New Hope’s
students scoring proficient or better on the PSSA in the five years of its charter are
reproduced as follows:
New Hope, 89 A.2d at 733.
In its opinion reviewing the decision of the CAB to uphold the Board’s
decision not to renew New Hope’s charter, the Commonwealth Court explains that
“[t]he increases in math proficiency [at New Hope] correspond in part to higher
proficiency rates in new 6th and 7th grade classes, not solely to increased
proficiency levels in existing students from one year to the next.” Id. (citing the
school board’s exhibit showing 2009 math proficiency rates of 33% for 6th grade
and 40.4% for 7th grade versus 31.3% for 8th grade). By way of comparison, in
2011, 55% of Thackston’s students scored proficient or better in mathematics on
the PSSA and 41.9% scored proficient or better in reading. (Doc. 130-23).
As further evidence that Thackston’s academic performance was superior to
New Hope’s, Defendants present a review of publicly accessible Pennsylvania
School Performance Profiles, published by the Pennsylvania Department of
Education. (Doc. 131, p. 16). For the 2012-13 school year, New Hope received a
“Building Level Academic Score” of 46.8 out of a possible 100 while Thackston
received a 57.5. (Doc. 131, p. 16 (citing doc 130-38); doc. 130, ¶ 81). In the same
year, at New Hope 26.57% of the students were determined to be “proficient” or
“advanced” in mathematics and 22.3% were determined to be “proficient” or
“advanced” in reading. (Doc. 131, p. 16). At Thackston, students’ percentages
were determined to be 53.35% and 47.66%, respectively. (Id.).
Finally, Defendants emphasize that unlike New Hope, Thackston was able to
achieve AYP for at least one year of operation. By comparison, New Hope did not
achieve AYP throughout its operational school years. (Doc. 130, ¶¶ 44, 46; doc.
134 ¶¶ 44, 46). Plaintiffs stress that both schools did not meet the AYP minimum
compliance standards. (Doc. 69, ¶ 230; doc. 134, ¶ 44).12
Thackston achieved AYP in its first year of operation (doc. 130, ¶ 44), but as noted in the
Factual Background, No Child Left Behind specifies that any school that fails to achieve AYP in
four out of five years of the school’s charter fails to meet the minimum compliance standards.
(Doc. 134, ¶ 44). While “some district schools achieved AYP at different times,” (doc 130, ¶
45), Plaintiffs also point out that the City School failed to meet AYP for at least a decade. (Doc.
69, ¶ 232; doc 134, ¶¶ 45-46). This fact may indicate that the City School too is struggling
academically; however, the City School is a public high school and has not been chosen as a
comparator school. Thus, its performance, while not grossly dissimilar to New Hope’s own, is
not relevant for the purposes of our analysis here.
Defendants assert that the “primary reason” New Hope’s charter was not
renewed was due to the school’s poor test scores and academic results. (Doc. 130,
¶ 69). This, they argue, is the principal justification for why this Court should find
that New Hope was not similarly situated to Thackston. Defendants further argue
that New Hope’s poor results amount to a rational basis for treating New Hope
differently from Thackston. They also point to the differences in the grades the
two schools taught, and differences in the respective schools’ governance
structures. Specifically, Defendants note that one man, Isiah Anderson, was
primarily responsible for New Hope’s operations, headed the school’s management
company, and owned the building that housed the school. (Doc. 131, p. 18). In
considering this arrangement, the Commonwealth Court of Pennsylvania observed
that the Board “found that New Hope’s board of trustees did not discuss or
consider the terms of the management agreements, leases, and AEDY contract with
Anderson’s businesses before approving them, and those findings are amply
supported by the record.” (Doc. 131, p. 18 (citing Exh. 41)). Defendants provide
no specifications regarding how Thackston was managed. (Id.).
Unsurprisingly, Plaintiffs disagree with Defendants’ characterization of
Thackston and New Hope as dissimilar schools. Among other factors, Plaintiffs
emphasize that the schools are both: (1) within the City of York; (2) subject to the
jurisdiction of the District; (3) serve the same geographic population; (4) funded by
the District; (5) subject to the same charter renewal application process (at least in
theory – Plaintiffs of course dispute the similarity with which the application
process was conducted in practice); and (6) subject to the same charter school
laws. (Doc. 133, p. 14). Plaintiffs also emphasize that Thackston was funded by a
donor from either Arizona or Nevada, whose identity remains unknown and should
therefore have been subject to the same scrutiny as Isiah Anderson of New Hope.
(Id.). Plaintiffs argue that, unlike New Hope, at no point did the Board investigate
Thackston’s management processes, let alone subject Thackston to the same
rigorous investigation that New Hope received. Defendants counter that they had
no reason to suspect Thackston’s anonymous donor had any relation to the
Thackston’s governance or construction and management contracts.
Thackston sought renewal of its charter in the 2013-14 school year, effective
for the 2014-15 school year. (Doc. 130, ¶ 76). Throughout its renewal process,
Thackston was evaluated under the Pennsylvania Value Added Assessment System
(“PVAAS”) rather than solely by its PSSA test scores or AYP. New Hope had in
fact requested to be evaluated under PVAAS as well, because its academic
achievements appeared more substantial when viewed through that lens;13
however, the Board refused to use PVAAS to evaluate New Hope, noting that
“PVAAS shows growth from one point in time to another, but is not a measure of
Indeed, the Administration’s committee members noted that “the PVAAS data does show
growth” in terms of New Hope’s academic progress. (Doc. 133-7, ¶ 5).
student achievement.” (Doc. 130, ¶ 61). Defendants further explain that, at the
time New Hope made its request, PVAAS was not an accepted standard under the
Department of Education Regulations and the AYP system. (Doc. 130, ¶ 62). By
the time Thackston was evaluated, however, the newly minted School Performance
Profile was used, with PVAAS as an approved component of the Profile. (Doc.
130, ¶¶ 91-93; doc. 135, pp. 9-10).14
Ultimately, despite Thackston’s academic shortcomings, the School Board
voted to renew its charter. (Doc. 69, ¶¶ 166, 169). Moreover, District officials met
with Thackston prior to renewing its charter and allowed Thackston to correct any
identified deficiencies, but did not do the same for New Hope. (Id. ¶¶ 224-25).
Following this meeting, the District did not direct the initiation of non-renewal
proceedings against Thackston. (Id. ¶ 226). Due to the similarities between New
Hope and Thackston, Plaintiffs argue that there was no rational basis for any
variation in the treatment rendered to either school.
Neither party has presented us with federal case law demonstrating how
courts have judged the similarity of charter schools in the past. In Project Reflect,
Inc. v. Metropolitan Nashville Bd. of Public Educ., 947 F.Supp.2d 868, 881 (M.D.
Tenn. 2013), the District Court for the Middle District of Tennessee found, on a
Motion to Dismiss, that plaintiffs failed to allege the existence of another similarly
We also note that New Hope’s charter specifically provided for the evaluation of New Hope’s
academic progress through use of PSSA testing. (See above, Factual Background, Section I.B).
situated charter school where they acknowledged that their school was the only one
performing in the bottom 5%. Project Reflect, 947 F.Supp.2d at 881 (dismissing
plaintiffs’ equal protection claim). Here, too, Plaintiffs do not refute Defendants’
statement that New Hope students scored the lowest on PSSA testing, as compared
to the District Students and Thackston. (Doc. 134, ¶¶ 79, 80). Plaintiffs also admit
that the 2012-13 School Performance Profiles indicate that Thackston students
were vastly outperforming New Hope students in proficiency for mathematics and
reading. (Id.). While the parties agree that New Hope showed improvement when
its academic performance was evaluated using PVAAS, the District was able to
articulate a rational and non-arbitrary reason for its decision to focus on AYP and
PSSA test scores rather than PVAAS during New Hope’s evaluation. As noted
above, PVAAS had not been endorsed as a valid evaluation system at the time that
New Hope was subject to non-renewal proceedings. Plaintiffs have presented no
agrument disputing Defendants’ explanation of the decision to use different
Section 1729-A(a)(2) of the Charter School Law “permits a school district to
deny renewal of a chart school’s charter for failure to meet student academic
performance standards.” New Hope, 89 A.2d at 736 (citing 24 P.S. § 17-1729A(a)(2); Ronald H. Brown Charter Sch. v. Harrisburg City Sch. Dist., 928 A.2d
1145, 1152-53 (Pa. Cmwlth. 2007)).15 We find that the described differences in
the schools’ performance, as well as the highly concentrated governance structure
at New Hope under Isiah Anderson, render the two schools dissimilar for purposes
of a “class of one” comparison. As such, the differences provided a sufficient
basis for Defendants to evaluate the two schools differently by giving Thackston
greater opportunity to correct its shortcomings as compared to that afforded to
Without a valid comparator entity, a plaintiff cannot make out a claim under
the Equal Protection Clause. However, even if Thackston and New Hope were
sufficiently similar comparators, Defendants could still defeat Plaintiffs’ claim by
showing that there was a rational basis for classifying them separately. Under
rational-basis review, a classification is unconstitutional if it is “irrational and
wholly arbitrary.” Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 286 (3d Cir.
2004) (quoting Olech, 528 U.S. at 564) (internal quotation marks omitted); see
Highway Materials, Inc. v. Whitemarsh Twp., 386 Fed. App’x 251, 259 (3d Cir.
2010) (explaining that class-of-one challenges fail when “‘there is any reasonably
conceivable state of facts that could provide a rational basis for the classification’”
(quoting Heller v. Doe, 509 U.S. 312, 320 (1993))). Although we may even
The Commonwealth Court of Pennsylvania further notes that 24 P.S. § 17-1729-A(a)(2) was
the operative law in effect when Defendants decided not to renew New Hope’s charter. (Doc.
130-29, pp. 9-10).
hypothesize a legitimate public purpose in applying rational basis review, see Am.
Express Travel Related Servs., Inc. v. Sidamon-Eristoff, 669 F.3d 359, 367 (3d Cir.
2012), we must still strike down a classification “that is clearly intended to injure a
particular class of private parties, with only incidental or pretextual public
justifications.” Kelo v. City of New London, Conn., 545 U.S. 469, 491 (2005)
(Kennedy, J., concurring) (citing, inter alia, Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432, 446-47 (1985)).
Assuming arguendo that Thackston and New Hope are sufficiently similar
to constitute comparators, we find that the consistent and repeated disparities in the
schools’ academic performances, as demonstrated by their PSSA scores, Building
Level Academic Scores, AYP achievements and School Performance Profiles, are
sufficient to support Defendants’ decision not to renew New Hope’s charter and
provide a rational basis for the District’s differing treatment of the two entities. As
noted above, the record shows Thackston consistently outperformed New Hope on
myriad metrics of academic performance and achievement.
Though our determination is made independently of the analysis put forth by
the Commonwealth Court of Pennsylvania, we also note that its findings support
our determination here. Ultimately, that court concluded that the Board’s findings
(1) that New Hope’s curriculum was not in compliance with Chapter 4’s academic
standards; and (2) that New Hope’s student performance “had not shown real or
steady improvement,” both had ample support from the record. (Doc. 130-29, p.
In their Answer to Statement of Facts (doc. 134), Plaintiffs contest the extent
of the Board’s knowledge of New Hope’s academic shortcomings at the time New
Hope’s charter was not renewed. (Doc. 134, ¶¶ 40, 78-81). Defendants
emphasize, however, and we concur, that it would be improper for this Court to
conduct a secondary review of whether New Hope was misevaluated by the Board,
the CAB, and the Commonwealth Court. Marlboro Corp. v. Assc. of Independent
Colleges Schs., Inc., 556 F.2d 78 (1st Cir. 1977); Yan v. Penn State Univ., No.
4:10-cv-0212, 2010 WL 3221828, at *6 (M.D.Pa. Aug. 13, 2010) (“There are some
forms of state action . . . which by their nature involve discretionary decision
making based on a vast array of subjective, individualized assessments.”).
Indeed, Plaintiffs also agree that the Court would be unable to engage in
such a review, but argue that the holding Marlboro is inapposite due to evidence
showing partiality on the part of the Board here in conducting New Hope’s review.
However, no such evidence has been forthcoming on the record. Plaintiffs ask that
the Court infer nefarious intentions from the directive the Board was given to pay
close attention to any reason New Hope’s charter might be subject to non-renewal;
but rather than indicate bias or partiality, we find that without further support for
Plaintiffs’ contentions, this evidence merely indicates that the Board was instructed
to be diligent in considering the matter at hand—New Hope’s non-renewal. To
infer an odious purpose from an instruction to place “special emphasis on areas of
weakness” to determine “[p]ossible reasons for Nonrenewal/Revocation” of New
Hope’s Charter without more than the aforesaid directive is too far a departure
from the record before us and has no factual justification. (Doc. 133, p. 15).
We now address a related point. At the core of Plaintiffs’ allegations is the
contention that Defendants “targeted” New Hope for non-renewal. They also
underscore that Thackston and New Hope shared certain administrative shortfalls.
Finally, Plaintiffs allege that Defendants employed the Levin Legal Group and
specifically Attorney Allison Petersen to advise them in the non-renewal of New
Hope’s charter, but notably have not named either the Levin Legal Group or
Attorney Petersen as Defendants in the instant litigation.
While we are not unsympathetic to Plaintiffs’ arguments, these allegations
are, on the whole, inapposite to our rational basis review. Even if Defendants also
targeted New Hope for non-renewal due to the District’s financial concerns, and
even if Thackston was indeed responsible for similar oversights in its governance,
such allegations do not alter our finding that Defendants are able to differentiate
the two schools and based their decision not to renew New Hope’s charter on a
non-arbitrary, concrete and specific reason—the school’s academic shortcomings.
That justification amounts to a rational basis for the differentiation in treatment
that is beyond mere pretext. Having established that basis, Defendants are able to
defeat Plaintiffs’ claims of an equal protection violation.
Similarly, Plaintiffs dedicate an entire section of their brief in opposition to
drawing this Court’s attention to discrepancies in Defendants’ testimony, gathered
over the course of thirty-five depositions. These discrepancies, Plaintiffs allege,
amount to false testimony. We agree with Plaintiffs that any inconsistencies in
Defendants’ evidence should be construed in a light most favorable to Plaintiffs.
See Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 772 (3d Cir.
2013) (noting that a court should view the facts in the light most favorable to the
non-moving party, drawing all reasonable inferences therefrom). However, in
order to defeat Defendants’ summary judgment motion, the discrepancies must be
material such that they would affect the outcome of the action. See Sovereign
Bank v. BJ’s Wholesale Club, Inc., 533 F.3d 162, 172 (3d Cir. 2008).
The Court has carefully reviewed the nineteen discrepancies that Plaintiffs
identify, and we conclude they do not in any way refute the evidence that New
Hope’s academic achievements were inferior to those of Thackston. Rather, the
inconsistencies focus on a variety of administrative minutia including:
(1) whether there was an “executive session” regarding the Thackston vote;16
Defendants state that the deposition testimony that Plaintiffs cited to establish this discrepancy
came, in part, from District School Board members Glenn Medice and Diane Brown and was
taken pursuant to separate litigation involving the District. (Doc. 135, pp. 17-18 n. 7).
Defendants therefore argue that references to these materials are counter to FED. R. CIV. P.
32(a)(8) and should be stricken. However, they have not filed a motion to that effect.
(2) whether the Board was provided with written materials to review prior to
or at the start of their meeting to vote on the renewal of Thackston’s charter;
(3) whether the Administration explained its rationale for recommending
that New Hope’s charter not be renewed at a public board meeting or at
subsequent non-renewal proceedings.
These discrepancies, and others that Plaintiffs list, even if taken in the light
most favorable to Plaintiffs, are simply not enough to overcome Defendants’
rational basis for the nonrenewal of New Hope’s charter and alter the outcome of
this litigation. First, in a case where discovery involving thirty-five depositions
commenced in 2015 and focused on events transpiring predominantly from 20112013, some discrepancy in testimony, particularly regarding administrative details,
is to be expected. At bottom, we perceive that these discrepancies may involve
mistaken recollection, and not necessarily amount to “falsehood,” as Plaintiffs
hyperbolically suggest. Second, and more importantly, like Plaintiffs’ other
arguments, much of this factual matter is inapposite to Defendants’ stated rational
basis for electing to renew Thackston’s charter and not New Hope’s.18 Again,
The discrepancy Plaintiffs describe as “#3” is in regard to whether there were one or two
committee meetings to determine whether to renew New Hope’s charter. (Doc. 133-23, p. 3).
Plaintiffs again cite to deposition testimony of Board Member Diane Brown for the proposition
that there was only one meeting, which is in contradiction to the Board’s January 13, 2013
minutes. Defendants again emphasize that Brown was not on the Board at the time of the New
Hope nonrenewal decision. (Doc. 135, p. 18, 18 n. 7).
Only “# 9” regarding whether Thackston achieved AYP is appurtenant to the schools’
academic achievements. At one point, Defendant Margie Orr testified that she thought
Defendants rightly stress that in order to survive rational basis review, Plaintiffs’
evidence must indicate that Defendants’ actions were not rationally related to any
legitimate government purpose. Without the debunking the differences that
Defendants identify between the two schools, which we have determined amount
to a rational basis for the differentiation in treatment, the discrepancies in
testimony Plaintiffs identify do not affect the outcome of our analysis to a material
As we stated in our Memorandum in response to Defendants’ Motion to
[i]t is with utmost restraint and strict adherence to the appropriate standard
of review that we permit Plaintiffs’ [equal protection] claim to survive.
Certainly, on a motion for summary judgment, “[Plaintiffs] will have to offer
an ascending quantum of proof that [D]efendants’ actions were not
rationally related to a legitimate government purpose.” Montanye v.
Wissahickon Sch. Dist., 327 F. Supp. 2d 510, 520 (E.D. Pa. 2004). But we
may not dismiss their claim at this stage merely because it may be unlikely
that they will be able to carry that burden. See Phillips, 515 F.3d at 231.
(Doc. 85). That Defendants’ actions were not rationally related to a legitimate
government purpose is a high threshold to meet, and one that Plaintiffs have failed
to achieve here. We are not unsympathetic to the fact that Plaintiffs placed great
value upon a charter school that has now been extinguished through the proper
Thackston achieved AYP each year of its operation. (Doc. 133-23, p. 6). However, Defendants
have not argued that Ms. Orr was accurate and rather admit that Thackston only met AYP once
in five years. (Doc. 130-24). Indeed, the Court has conducted the foregoing analysis in the light
most favorable to Plaintiffs and on the premise that the parties agree on that matter.
processes mandated by Pennsylvania law. However, we have no alternative but to
dismiss Plaintiffs’ equal protection claim, as well as Plaintiffs’ claim under the
Pennsylvania Constitution, Article I § 26,19 because we find no actions by
Defendants that run afoul of the relevant federal or state constitutions.
Conspiracy in violation of 42 U.S.C. § 1983
To demonstrate a conspiracy under § 1983, plaintiffs must show that two or
more conspirators reached an agreement to deprive them of a constitutional right
under color of law. See Parkway Garage, Inc. v. City of Phila., 5 F.3d 685, 700
(3d Cir. 1993), abrogated on other grounds by United Artists Theatre Circuit, Inc.
v. Twp. of Warrington, PA, 316 F.3d 392 (3d Cir. 2003). As a threshold matter, a §
1983 conspiracy claim must involve an actual deprivation of a federally protected
right. See Sweetman v. Borough of Norristown, PA, No. 13-3540, 2014 WL
293430, at *2 (3d Cir. Jan. 28, 2014) (“A § 1983 conspiracy claim is viable only if
there has been an actual deprivation of a constitutional right.”); Perano v. Twp. of
Tilden, 423 Fed. App’x 234, 239 (3d Cir. 2011) (same); see also Torres-Rosado v.
Rotger-Sabat, 335 F.3d 1, 14 (1st Cir. 2003); Vaden v. Village of Maywood, Ill.,
809 F.2d 361, 366 (7th Cir. 1987); Marchese v. Umstead, 110 F. Supp. 2d 361, 371
As noted at the outset of our analysis, the Pennsylvania Supreme Court has held, and the
parties do not dispute, that Article I § 26 should be analyzed under the same standards used to
evaluate federal equal protection claims. See Small v. Horn, 722 A.2d 664, 672 n.13 (Pa. 1998).
We therefore dispose of Plaintiffs’ state law constitutional claim on the same grounds as their
federal equal protection claim.
(E.D. Pa. 2000); Holt Cargo Sys., Inc. v. Del. River Port Auth., 20 F. Supp. 2d 803,
843 (E.D. Pa. 1998).
Plaintiffs’ § 1983 conspiracy claim is founded on the allegation that
Defendants conspired and entered into an agreement “among themselves to deprive
Plaintiffs of their constitutional rights by . . . treating New Hope differently than
similarly situated charter schools and, consequently, treating the within Plaintiffs
differently than similarly situated persons.” (Doc. 69, ¶ 324). In the foregoing
analysis, however, this Court concluded that Defendants had a rational basis for the
treatment that New Hope received, resulting in the decision not to renew New
Hope’s charter. Because of this determination, we hold that no equal protection
violation has, in fact, occurred. Without such an actual deprivation of a
constitutionally protected right, there can be no premise for Plaintiffs’ § 1983
claim. The claim shall therefore be dismissed.
Spoliation of Evidence
Plaintiffs have not filed a motion for sanctions due to alleged spoliation of
evidence. Nor do Defendants address the potential of such a motion in their
Motion for Summary Judgment or brief in support thereof. However, Plaintiffs
assert an argument for spoliation in their brief in opposition to Defendants’ Motion
(doc. 133) and Defendants provide a substantive response to the merits of the
allegation in their Reply Brief. (Doc. 135). Thus, we too shall address the merits
of Plaintiffs’ spoliation allegation. For the following reasons, we conclude that it
too is misplaced.
“In law, spoliation refers to the hiding or destroying of litigation evidence,
generally by an adverse party.” Williams v. BASF Catalysts LLC, 765 F.3d 306,
320 (3d Cir. 2014) (internal citations and quotations omitted). “In the event that a
party undertakes spoilage, the sanctions available to a court include dismissal of
the relevant claim or a presumption by the factfinder that the spoiled evidence was
harmful to the offending party’s case.” Capogrosso v. 30 River Court East Urban
Renewal Co., 482 Fed.Appx. 677, 682 (3d Cir. 2012) (citing Bull v. United Parcel
Service, Inc., 665 F.3d 68, 72-73 (3d Cir. 2012)). “The spoliation inference is a
permissive inference that is predicated on the “common sense observation” that
when a party to an adversarial proceeding destroys relevant evidence it is likely
done out of fear that the evidence would be harmful to that party.” Kounelis v.
Sherrer, 529 F.Supp.2d 503, 520 (D.N.J. 2008) (citing Mosaid Techs. Inc. v.
Samsung Elec. Co., 348 F.Supp.2d 332, 336 (D.N.J. 2004)). In this instance,
Plaintiffs presumably seek an adverse inference that the evidence they claim was
subject to spoliation contains information harmful to Defendants’ case.
For spoliation to properly arise, four elements must be met. “Spoliation
occurs where: the evidence was in the party’s control; the evidence is relevant to
the claims or defenses in the case; there has been actual suppression or withholding
of evidence; and, the duty to preserve the evidence was reasonably foreseeable to
the party.” Bull, 655 F.3d at 73.20
The spoliation allegations here center on the deleted email account of former
Assistant Superintendent Perry-Cross. (Doc. 133, pp. 25-26). Defendant PerryCross retired from her position at the District in February 2012; her email account
was purged at some point thereafter. (Doc. 135, p. 23). The parties agree that the
first two elements of spoliation—that the emails were within Defendants’ control
and they were relevant to the claims of the instant case—are not at issue. The
second two elements, however, are in dispute. Defendants argue that the emails
were deleted as a matter of course and Defendants were by no means attempting to
suppress evidence. (Id. p. 21). They further argue that at the time the emails were
deleted, there was no reasonably foreseeable duty to preserve the account. (Id.).
We agree with Defendants regarding both their arguments of foreseeability and
intentionality. We thus find that Plaintiffs’ allegations of spoliation have no merit.
We first address Defendants’ arguments related to intent. As noted,
Defendant Perry-Cross left the District in February 2012. Her email account,
along with all of the emails it contained, was deleted thereafter. Defendants
suggest that this may have occurred as soon as ninety days after Defendant Perry
We clarify that these four elements pertain to a court’s analysis of whether spoliation in fact
occurred. Once a court uses these four considerations to determine whether spoliation exists, a
separate and distinctive set of elements applies to a decision of whether to apply spoliation
sanctions. Bull, 665 F.3d at 73 n.5; see also Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76,
79 (3d Cir. 1994) (discussing the elements of an analysis of spoliation sanctions).
Cross left, in keeping with the District’s general practice (doc. 133-27, 13:14-24),
while Plaintiffs allege, without specifying where in the record they may have
derived this information, that “Ms. Perry’s emails were purged sometime after
2012.” (Doc. 133, p. 27).21
The Third Circuit has stressed that “[a]lthough a District Court has
discretion to draw inferences from the record on a party’s intent, it strays beyond
the bounds of its discretion when . . . there is no factual basis to do so.” Bull, 665
F.3d at 74 (reversing a district court’s decision that spoliation sanctions were
appropriate where there was no evidentiary basis for an inference that the plaintiff
specifically intended to withhold original copies of medical notes, where the
originals were located at her home, were listed as part of a discovery request, and
defendants challenged the authenticity of the copies produced).
Plaintiffs here have presented no factual basis whatsoever in support of their
allegations that Defendants’ intended to destroy evidence helpful to Plaintiffs’
claims. Rather, the District’s policy of purging former employees’ email accounts
Without the benefit of a citation to the record, it is possible that Plaintiffs may have derived
their allegation from the deposition testimony of network systems administrator for the York
City School District, Michael Ferguson. (Doc. 133-27). On the thirteenth page of that
testimony, Mr. Ferguson vaguely refers to the deletion of an unspecified email account in
December 2013. However, the pages of prior testimony that might have elucidated the matter of
which account Mr. Ferguson was referring to are inexplicably not included in the record.
Because multiple email accounts have been both deleted and referred to in the course of this ongoing litigation, including, for example, the account of Dr. Wortham, the Court cannot conclude
that Mr. Ferguson was referring to Ms. Perry-Cross’s account. It is not our place to speculate
favorably on behalf of Plaintiffs without any factual support, particularly given that the
timeframe mentioned in Mr. Ferguson’s testimony (December 2013) does not correlate with that
Plaintiffs assert (“sometime after 2012” (Doc. 133, p. 27)).
within ninety days, and the fact that litigation did not commence until well over a
year after Defendant Perry-Cross left the District and potentially over a year after
the deletion occurred amounts to evidence supporting the opposite conclusion.
Defendants also point to their swift and prompt reaction to turn over newly
discovered evidence in the form of another District employee’s email account after
previously believing it was deleted. (Doc. 135, pp. 21-22). This compilation of
evidence, taken as a whole, leads the Court to conclude that Plaintiffs have failed
to support their allegation that Defendants acted with intent to spoil evidence when
they deleted Defendant Perry-Cross’s email account.
We turn next to the issue of whether Defendants had a duty to preserve the
emails at the time of their deletion. While the time period concerning the deletion
is in dispute, the parties do agree that litigation in the instant matter did not
commence until the filing of Plaintiffs’ first complaint on November 19, 2013.
Thus, even taking the later date on which Plaintiffs’ allege the deletion occurred
(sometime after 2012) as true, Plaintiffs must still argue that Defendants’ duty to
preserve the emails arose nearly eleven months before Plaintiffs’ Complaint was
An independent duty to preserve relevant evidence arises when the
party in possession of the evidence knows that litigation by the party seeking
the evidence is pending or probable and the party in possession of the
evidence can foresee the harm or prejudice that would be caused to the party
seeking the evidence if the evidence were to be discarded. If, however, the
duty to preserve evidence has not been triggered at the time the evidence
was destroyed, then there can be no spoliation.
Kounelis v. Sherrer, 529 F.Supp.2d 503, 518 (D.N.J. 2008) (internal citations and
Plaintiffs attempt to persuade the Court that “[t]here can be no credible
argument that the defendants were not aware that the disruption of 700-800
children and tens of millions of dollars would not produce litigation” such that
Defendants should have been on notice of their duty to preserve Defendant PerryCross’ email account. (Doc. 133, p. 28). We disagree. Plaintiffs’ argument that
by the simple act of doing their jobs, Defendants should have been on notice of
litigation that would not commence until nearly a full year later does not create
knowledge that litigation is “pending or probable.” In Kounelis v. Sherrer, the
District Court for the District of New Jersey found that a pending disciplinary
proceeding that commenced just one day after an altercation between a prison
inmate and prison guards was sufficient to trigger the defendants’ duty to preserve
the video footage of the altercation. Here, however, Plaintiffs waited nearly a year
before instituting proceedings. Further, while Plaintiffs do not argue that New
Hope’s move to appeal the Board’s decision of non-renewal to the CAB
constituted a triggering action, Defendants stress that this process did not
commence until October 2012, eight months after Defendant Perry-Cross retired,
and that the CAB appeals process does not involve discovery. (Doc. 135, p. 23).
Thus, the appeal alone would not place Defendants on notice of their duty to
preserve evidence; nor would it be sufficient to warn them of pending litigation
from the students and parents of students of New Hope, who launched the instant
federal proceeding separate and apart from New Hope’s own appeal to the CAB.
For all of the reasons discussed, we find that Plaintiffs have presented no
evidence tending to show that Defendants acted with intent when they deleted
Defendant Perry-Cross’s email account. Plaintiffs have also failed to present any
evidence adducing that a duty to preserve arose prior to the deletion of the account.
As such, they have failed to establish both the third and fourth elements of
spoliation, and we find that their allegation has no merit.
For the foregoing reasons, we shall grant Defendants’ Motion for Summary
Judgment (Doc. 129) in its entirety. A separate order shall issue in accordance
with this ruling.
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