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Court strikes down Duquesne forced transfer

| Friday, Oct. 1, 2010

In a unanimous opinion, the Pennsylvania Supreme Court has declared unconstitutional the 2007 law that opened the door to the forced transfer of Duquesne secondary-age students to East Allegheny and West Mifflin Area high schools.

The seven justices concurred in an opinion written by Justice Thomas G. Saylor and dated Wednesday that found Act 45 of 2007 was "impermissible special legislation" that only covered Duquesne City School District.

"It seems clear that the practical effect of Section 1607.1 (in Act 45) was, and was always intended to be, to provide a remedy solely for the adverse circumstances obtaining within the Duquesne City School District upon elimination of its high school," Saylor wrote.

The decision reverses a Commonwealth Court ruling upholding Act 45. The justices returned the matter to Commonwealth Court for further consideration.

The decision was welcomed by officials in East Allegheny, West Mifflin Area and South Allegheny, the three districts that pressed the suit.

West Mifflin Area solicitor Patricia McGrail said Thursday the decision is favorable for the district but it is too early to say how the district would proceed. Solicitors in the other districts agreed.

"The (Pennsylvania) Department of Education is reviewing the court's decision," state deputy education secretary Amy C. Morton said in a statement issued by PDE late Thursday.

PDE and then-secretary Dr. Gerald L. Zahorchak were defendants in the civil action along with Duquesne City School District, where PDE appoints a Board of Control, and Duquesne Education Association, the district's teachers union.

The ruling also caused authorities to scramble to assure Duquesne students that they will continue to attend the high schools some have attended since the fall of 2007.

"No student will be left without a public high school to attend," Morton said.

"We'll abide by whatever direction we are given," East Allegheny solicitor Daniel P. Beisler said. "We have had some really nice kids come over from Duquesne to our school."

"We're looking out for the kids and we'll make sure that the children are taken care of," said Allegheny Intermediate Unit executive director Dr. Linda Hippert.

AIU runs day-to-day operations at Duquesne Education Center under a contract with PDE.

In turn, Duquesne City School District sends tuition payments each quarter to West Mifflin Area and East Allegheny districts to cover the Duquesne students attending those respective high schools.

Hippert was in Harrisburg for a monthly meeting of directors of 29 intermediate units, which act as regional liaisons between PDE and local districts. AIU serves 42 suburban Pittsburgh districts in Allegheny County, including all those involved in the suit.

"I don't think anyone is sure of the exact implications of this decision," Hippert said.

The justices conceded that "Act 45 may embody a salutary program aimed at resolving" problems that forced Duquesne High School to close but "nevertheless" it violates "the constitutional prohibition of special legislation."

That was the argument first made by attorneys for East Allegheny, West Mifflin Area and South Allegheny before Commonwealth Court.

"Appellants are correct in highlighting that a highly improbable convergence of events would be necessary for any school district other than Duquesne to be affected" by Act 45, Saylor wrote.

McGrail said she has been in touch with counsel that handled the matter on behalf of the three districts attorneys Michael Levine of Montgomery County and Paul Lalley of the law firm Campbell Durrant Beatty Palombo & Miller P.C. in Pittsburgh to discuss arrangements for reviewing the matter.

"At this point, we don't know what the Commonwealth Court will rule," South Allegheny solicitor George Gobel said.

State Rep. Marc Gergely, D-White Oak, who represents Duquesne and parts of West Mifflin Area and East Allegheny districts, said he has been in contact with state Sen. Jay Costa Jr., D-Forest Hills, state Rep. Bill Kortz, D-Dravosburg, and Frank Piccolino III, Duquesne city manager and a member of Duquesne's elected school board.

"We're all trying to assess the situation and get the stakeholders together, sooner rather than later," Gergely said.

Gergely, a former school board president in McKeesport Area, also is optimistic that there could be a legislative solution, even in the dying days of the current General Assembly session.

"I'm confident we can find a way to solve the problem before it goes any further," Gergely said.

South Allegheny was a party in the lawsuit because of a provision in Act 45 that required the hiring of teachers furloughed from the former Duquesne High School by nearby districts.

Gobel said the provision could have had "significant impact" on the district because of a "lengthy list of furloughed Duquesne teachers," but the ruling will not impact current operations.

After South Allegheny conducted its hiring process for 2007-08, two Duquesne teachers who met that district's required certifications remained unhired.

Eventually, Gobel said, one teacher moved out of Pennsylvania. The other remains on staff.

"That teacher is doing a more than satisfactory job for the district," Gobel said. "We're not going to do anything adverse to that teacher."

Staff Writers Kelly Fennessy and Eric Slagle contributed.

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