School Closings – The Last Resort in the Budgetary Process

More and more Districts are wrestling with difficult, and at times, emotionally sensitive, issues of school consolidation.  When budgetary constraints are coupled with declining enrollment due to increasing Charter and Cyber-Charter School enrollments, one of the most difficult and painful options to consider in efficiently providing for the educational needs of the students is school closings, usually elementary schools in community settings.  Although the budgetary savings from the consolidation of services and school closings can be significant, the emotional and sensitive nature of the decision sparks controversy and can be divisive.  The following legal standards and practical step-by-step process may assist you if you are facing these difficult choices. 

Section 1311(a) of the School Code vests broad discretionary power in school boards with regard to school closings.  Courts will not interfere with a Board’s exercise of its discretionary power unless the action was based on a “misconception of law, ignorance through lack of inquiry into the facts necessary for an intelligent judgment, or if the action is the result of arbitrary will or caprice.”  Mere differences of opinion as to the desirability of closing a school is an insufficient basis for the court to interfere with the Board’s discretion. 

While a School Board is required to “investigate, inquire, study, ponder and finally decide the question before them in order to exercise its lawfully mandated discretion,”  the process leading up to the decision cannot be unending.  Pennsylvania courts have held that eventually a School Board is entitled to act without being stopped at every turn by the difference of opinions of others.  As long as the facts are sufficient to support a School Board’s decision, that is all that is necessary for a Court to find that the Board did not abuse its discretion. 

When considering a school closing, the overlapping statutory requirements contained in Sections 524, 780 and 1124 of the School Code must be followed to protect the rights of the general public and the School District’s professional employees.  Section 780 of the School Code requires the School Board to hold a public hearing on the issue of whether to permanently close a school building.  The public hearing must be held three months (not 90 days) prior to the decision on whether or not to close a school with public notice at least 15 days prior to the hearing.  Therefore, a minimum three and one half month time period must elapse before the Board can take action.

It is also mandatory that appropriate notice procedures be provided to the School District’s professional employees.  Section 524 of the School Code contains the written notice that must be given to all temporary-professional and professional employees and requires that “in the event a School Board shall determine prior to the beginning of the next school term to close any school or department, sixty (60) days notice, in writing, prior to the closing of any school or department, shall be given to all temporary professional and professional employees affected thereby . . . Upon failure to give written notice of intention to close any school or department, the School District shall pay such employees their salaries until the end of the school year during which said schools or departments were closed.”  This provision uses two different phrases, “school term” and “school year“.  A school term commences on the opening of school in the Fall of one year and terminates on the closing of school in the Spring of the following year.  24 P.S. §1-102.  A school year commences on July 1st and terminates on June 30th of the following year.  24 P.S. §102.  In a typical situation, the teachers’ 60 day notice is given immediately after a School Board’s formal decision to close the school.  The District should also review its Collective Bargaining Agreement for any additional furlough notice requirements.

In regard to suspensions (furloughs) that may arise as a result of a school closing, Section 524 is not, in and of itself, a basis for suspending a professional employee.  Courts have held that Section 524 is merely a procedural statute while Section 1124 specifies the sole grounds to base a professional employee’s suspension.  Accordingly, resolutions and notices regarding the school closing must also be keyed to one of the suspension reasons contained in Section 1124.  In addition to the usual suspension reason of substantial decrease in pupil enrollment, an additional Section 1124 cause for suspension is the consolidation of schools within a single District.  Even if the closing may not result in the suspension of any professional or temporary employees, but merely a reassignment, the sixty (60) day notice required by Section 524 should still be given to those employees currently assigned to the school to be closed.  This would be the most prudent course since Section 524 requires the sixty (60) day notice to be given to professional employees “affected” by the closing.

Finally, the Department of Education also specifically requires that when a School District closes a school building for educational use, it must notify the Department prior to the closing.  The notification must include the reason or reasons for the closing and describe how the closing contributes to the orderly development of attendance areas.  22 Pa. Code §349.28(a).  The Department may require that the approval be based upon conformance with a long-range attendance area plan. 22 Pa. Code §349.28(b). 

If your District is considering the difficult decision whether to close a school at the beginning of the 2008-2009 school term, the public hearing must be scheduled as soon as possible.  The mere holding of the public hearing does not obligate the School Board to actually close a school building.  However, the public hearing must be held in sufficient time to give the appropriate Section 524 notices to any professional employees in the event the school is closed.  A recommended timetable is available on our website at www.mbm-law.net.  Our school law attorneys are well versed in issues regarding school closings and are available to answer any questions which you may have.

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