Neshaminy Sch. Dist. v. Pa. Human Relations Comm'n
| Decision Date | 07 June 2021 |
| Docket Number | No. 1765 C.D. 2019,1765 C.D. 2019 |
| Citation | 257 A.3d 766 |
| Parties | NESHAMINY SCHOOL DISTRICT, Petitioner v. PENNSYLVANIA HUMAN RELATIONS COMMISSION, Respondent |
| Court | Pennsylvania Commonwealth Court |
Michael I. Levin, Huntingdon Valley, for Petitioner.
Lisa M. Knight, Assistant Chief Counsel, Philadelphia, for Respondent.
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge,1 HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION BY JUDGE COHN JUBELIRER
Neshaminy School District (District) petitions for review of the Final Opinion and Order of the Pennsylvania Human Relations Commission (Commission) finding that the District had violated Section 5(i)(1) of the Pennsylvania Human Relations Act2 (Act), 43 P.S. § 955(i)(1), through the District's use of Native American imagery and the term "Redskins" because such use is harmful to non-Native American students as they create impermissible stereotypes. The Commission found that the evidence of harassment of, or a loss of educational opportunities to, Native American students was either speculative or insufficient and thus did not support claims of discrimination. However, based on a liberal construction of Section 5(i)(1), it concluded that the harm to non-Native American students constituted unlawful discrimination under the Act. As relief, citing the opinion of Andre Billeaudeaux, the District's expert, that the goal is to "Educat[e] not Eradicat[e]," the Commission allowed the District to continue using the name Redskins, but required the District to provide education regarding the negative and positive attributes associated with the term. (Final Opinion (Op.) and Order at 51-52.) In addition, the Commission directed the District to "cease and desist from [ ] us[ing] [ ] any and all logos and imagery in the Neshaminy High School [(High School)] that negatively stereotypes Native Americans" based on Mr. Billeaudeaux's testimony that most of the currently used images and logos should be changed because they were not regionally appropriate and were historically misaligned. (Id. at 54, 57.) The District has petitioned this Court for review, asserting 14 reasons why the Commission erred or abused its discretion.
At issue is whether the Commission's finding of this violation is consistent with the language of Section 5(i)(1) of the Act, which provides, in pertinent part:
43 P.S. § 959(a) (emphasis added). Here, the Complaint was filed by the Commission, but we will refer to it having been filed by the "PHRC" to delineate between the adjudicatory and prosecutorial arms of the Commission. Finally, the legislature stated in Section 12(a) of the Act that the Act's provisions "shall be construed liberally for the accomplishment of the purposes thereof, and any law inconsistent with any provisions hereof shall not apply." 43 P.S. § 962(a).
Based on the Commission's findings of fact, we set forth the following background. The District has 11 schools, one of which is the High School, where approximately 2,500 to 3,000 students attend. The District's enrollment process allows, but does not require, students to identify their race or ancestry. Thus, the District's enrollment data does not accurately reflect how many students identify as Native American. Since the 1930s, the High School has used the name Redskins for its sports teams, yearbook, and other purposes. Until the 1980s, the High School had a live mascot, but it does not currently have such a mascot. The High School uses and displays "[l]ogos and generic caricature images of Native Americans" in and around the "High School and near its athletic playing fields." (Final Op. and Order, Finding of Fact (FOF) ¶ 11.)
In 2001, with the High School's Principal's approval, the student newspaper, the Playwickian,3 published an editorial entitled "Reading, Writing and Racism," challenging the continued use of the term Redskins, which a majority of the editorial staff considered "to be a culturally insensitive antiquated racist slur." (Id. ¶¶ 47, 49-50.) The goal of the editorial was to obtain a change in the name, to make others aware that the name was offensive, and to propose banning the publication of the word in the Playwickian. No change to the name occurred as a result of the editorial.
In 2012, Donna Boyle, a District resident and mother of one former student and a current High School student, who is of Cherokee and Choctaw ancestry, complained that the term Redskins was a personally offensive racial slur. (Id. ¶¶ 53-54.) Among others, Ms. Boyle complained that: the image used was not that of a Native American from the region; the term, in her view, related to the "bloody history when whites were paid a bounty to exterminate Native Americans"; and other racial slurs, such as the "N" word, would not be allowed. (Id. ¶¶ 55-57.) No action was taken as a result of these complaints. Ms. Boyle complained to the High School's Principal, Dr. Robert McGee, who responded that "everyone in Neshaminy is a proud Redskin," to which she responded that her family was not proud of the term. (Id. ¶¶ 59-60.) Ms. Boyle continued to complain to Dr. McGee and sent psychological and educational research, reflecting how the use of the term Redskins had "long-term harmful effects on self-esteem and achievement of Native Americans and also has long-term negative effects on non-Native Americans as well." (Id. ¶ 61.) Ms. Boyle also complained at School Board meetings and sent hundreds of emails to Dr. McGee and the School Board explaining the effect on her High School student son, Son, and requesting that action be taken. Again, the District took no action on Ms. Boyle's concerns. In 2014, Ms. Boyle invited Dr. McGee to a symposium at a local university where a Native American speaker was speaking about Native American rights and the use of the term Redskins. Dr. McGee attended the symposium, after which he made arrangements for Son to receive a yearbook without the word Redskins on it.
In October 2013, Dr. McGee approved two editorials for the Playwickian: one supporting a ban on the use of the term Redskins in the newspaper and one opposing the ban. The students had become aware of Ms. Boyle's concerns, and a majority of the editorial staff found the term offensive and, after taking a vote, decided to write the editorial that the term would no longer be used in the Playwickian. Many of those editors believed the use of the term violated School District's Policy 547, which describes the handling of discrimination and harassment, because the term was inherently offensive and racist. The counter position was written by another editor who did not find the term offensive. This editor would later change her mind after doing more research. The District placed the ban on hold, and Dr. McGee emailed the Playwickian's advisor, Tara Huber, that the hold would last until further consideration of the impact of the ban and whether the ban would infringe on other students' rights. At the time, the District's Policy 600 allowed for the redaction of slurs from school publications. On November 21, 2013, the student editors, along with their parents and Ms. Huber, attended a meeting with Dr. McGee and the High School's assistant principal. At the meeting, Dr. McGee gave the student editors materials explaining the District's conclusion that the student editors had no right to issue the ban. Per the testimony of one of the student editors, the students were given 15 minutes to present their positions, and the administrators took 1 hour and 45 minutes to present their position, which included concerns regarding the negative reactions other students and the community would have to the ban, particularly on social media. Several of the students felt they were talked at, bullied, intimidated, and harassed. The ban remained in place. Following the meeting, the student editors provided Dr. McGee with internet posts illustrating the types of negative reactions they were receiving, and a student's parents advised the District's Superintendent, Robert Copeland, that the student had been yelled at by a teacher in front of other students for being ungrateful and questioning how she could write articles criticizing the use of the term Redskins. Upon being informed of the complaint, Dr. McGee spoke to the teacher and instructed the teacher to apologize. Dr. McGee later made an announcement to the High School students to address the controversy, asking the students to debate the matter respectfully, which was aimed at addressing the criticism of the Playwickian's student editors. (Reproduced Record (R.R.) at 852a-54a, 1287a.) In November 2013, the Playwickian editors published an editorial critical of placing the ban on hold, which Dr. McGee had approved prior to publication. (Id. at 856a,...
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