In a recent decision, the Commonwealth Court has clarified that school districts may continue to apply for mandate waivers, notwithstanding any informal policy of the Pennsylvania Department of Education to delay or limit such waivers.  In Muhlenberg School District v. Pennsylvania Department of Education, an unreported opinion filed on November 20, 2008, the Court granted a school district’s request for declaratory relief and, in effect, gave the Muhlenberg School District a mandate waiver from the separate multi-prime contract requirement.  The district had sought a mandate waiver for a 13 million dollar expansion and renovation of its middle school on the grounds that (1) the district could not complete the work within the required timeframe and within budget if required to enter into multiple prime contracts, (2) the district could save between $100,000 and $300,000 if permitted to have a single contractor and (3) because the work was going to take place while school was in session, a single contractor would be better able to coordinate efforts to minimize disruption to school activities.

The School Code states at § 1714-B that PDE has sixty (60) days to approve, disapprove or request modifications to a school district’s request for a mandate waiver.  PDE replied to Muhlenberg’s request by sending a letter which denied the application, but provided as its reason for denial only the rationale that PDE had received a high volume of mandate waiver requests and was awaiting receipt of a task force report which would analyze data concerning the impact of mandate waivers on school operations.  PDE’s letter informed the district that no mandate waiver applications would be approved until the task force report was completed and reviewed.  This statement was consistent with a general perception that prevailed throughout the latter half of 2008 that PDE was not acting on mandate waiver applications, and that the program had been informally shelved. 

In appealing this matter to the Commonwealth Court, the district argued that PDE was not empowered to impose a moratorium on mandate waiver applications, and that the department’s failure to provide specific reasons for denying the application led to a deemed approval.  The Commonwealth Court agreed on both counts.  The Court specifically found that the authority granted in the School Code to establish a mandate waiver task force did not otherwise change or expand PDE’s powers or responsibilities to address mandate waiver applications.  The Court further found that PDE’s duty to act on the merits of a mandate waiver application required it to provide specific reasons for any denials, and that by refusing the Muhlenberg School District’s application on the basis of a pending task force report rather than on any substantive grounds, it had effectively denied the district its statutory right to submit a revised application.  The district’s mandate waiver application was thereby deemed approved by the Court. 

This decision is good news for any school district planning to make application for a mandate waiver.  To the extent that your district may be considering submission of a mandate waiver application, you can proceed with the assurance that the Commonwealth Court has held that right to be preserved, notwithstanding any efforts by PDE to impose a moratorium on such applications.

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Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.