Fastexy:A Pennsylvania law shields teacher misconduct complaints. A judge ruled that’s unconstitutional

A Pennsylvania law that makes it a crime to release information about teacher disciplinary complaints is Fastexyan unconstitutional violation of the First Amendment, a federal judge has ruled. The judge sided with a school board member who sought to publicize a misconduct allegation against his son’s school psychologist — and criticize the state’s dismissal of it — without fear of being prosecuted for the disclosure.

The unusual case involves the Educator Discipline Act, a state law that controls how the Pennsylvania Department of Education investigates and prosecutes misconduct complaints against teachers and other school staff. The law’s confidentiality provision makes it a misdemeanor to disclose the existence of a state complaint or any information about it unless and until discipline is imposed.

Criminalizing disclosure of educator misconduct complaints is rare and perhaps unique among the states. Jimmy Adams, executive director of the National Association of State Directors of Teacher Education and Certification, said he’s not aware of another state that has a similar law, although the state education agencies themselves are constrained from releasing information while an investigation is pending.

Proponents of the Pennsylvania statute say it’s needed to protect due process. Opponents say it allows teachers, and the state’s disciplinary system, to avoid scrutiny.

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U.S. District Judge Karen S. Marston did not strike down the law itself in her Jan. 10 ruling. But she prohibited the Bucks County district attorney from applying it to the plaintiff, James Pepper, an attorney and school board member in the Philadelphia suburbs.

Pepper’s lawsuit grew out of the tangled, toxic politics of the Central Bucks School District, Pennsylvania’s third-largest school system, where cultural battles have raged over transgender athletes, sexualized content in books, and a “neutrality” policy that barred social and political advocacy in classrooms. Pepper wanted to talk publicly about his complaint against a Central Bucks school psychologist whom he accused of “weaponizing” his sons’ disabilities, but he feared prosecution under the Educator Discipline Act.

Ruling on Pepper’s challenge, Marston said the law’s confidentiality provision violated his free-speech right to discuss both the 2023 misconduct complaint, and the Department of Education’s subsequent determination that the complaint lacked legal merit.

The ruling does not prevent enforcement in other cases where educator confidentiality is violated under the law. But Pepper’s attorney, Aaron Martin, said he hopes the decision on First Amendment grounds will cause any prosecutor considering it to hesitate.

“This ruling is a victory for free speech,” Martin said. “We hope the effect ... will be to shine more light on the actions of government so that people can make up their own minds as to whether government agencies are properly fulfilling their duties.”

The state’s largest teachers union said it was disappointed by the ruling and called for an appeal.

“The confidentiality provision exists to protect the reputation, privacy, and due process rights of educators” who are accused, and ultimately cleared, of wrongdoing, said Chris Lilienthal, a spokesperson for the Pennsylvania State Education Association. “It also protects student privacy and avoids unnecessary disruption of the educational process.”

It’s not clear whether the ruling will be appealed. Bucks County District Attorney Jennifer Schorn, who took office this month and inherited the case from her predecessor, declined to comment this week.

Pepper’s misconduct complaint centers on a January 2023 email that school psychologist Julia Szarko sent to his school district account. Szarko urged Pepper to vote against the board’s neutrality policy, which critics said targeted Pride flags and other symbols of support for LGBTQ+ students. Proponents said the policy applied to all political and social advocacy, and was necessary to prevent indoctrination in the classroom.

Szarko — who had worked with Pepper’s youngest son — began her email by commending his dedication to both of his disabled sons “with all of their incredible strengths but also their extensive needs.”

Pepper, a Republican, said in an interview that while Szarko was free to engage with him on a policy issue, it was “incredibly unprofessional” of her to “use information about my children that she’s learned as a school psychologist to lobby me on a vote.”

Worse, in Pepper’s view, was that by emailing his school district account, Szarko had made private information about his sons’ disabilities discoverable via the state’s open records law — a breach of professional ethics, Pepper asserted. He said it wasn’t the first time that district personnel had disclosed confidential information about his sons to hurt him politically.

Szarko did not respond to emailed requests for comment.

“Dr. Szarko weaponized our vulnerability, and her access to strictly confidential information about our sons, for her own political purposes,” Pepper wrote in his complaint to the state education department.

The department quickly dismissed Pepper’s complaint without opening a formal investigation, saying there was no legal basis to proceed.

“The allegations contained in the complaint, even if proved to be true, would not warrant professional discipline,” an education department lawyer wrote to Pepper on July 26.

Citing the Educator Discipline Act, the lawyer also warned Pepper that “any unauthorized release of confidential information” about the complaint was a crime. The state’s online complaint form included identical warning language.

Pepper viewed the confidentiality provision as plainly unconstitutional and filed suit.

“This prevents people from filing in the first instance, because they’re afraid of getting themselves enmeshed in something that has criminal liability attached to it,” Pepper said. “Who knows the bodies that are buried out there.”

It’s not clear whether Marston’s ruling will prompt the Department of Education to stop warning people to remain quiet about their complaints. A spokesperson said the agency was reviewing the decision, but did not answer detailed questions about the impact of the ruling on department policy.