           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Washington Township Independent        :
School District,                       :
                      Petitioner       :
                                       :
            v.                         :             No. 142 C.D. 2019
                                       :             Argued: December 12, 2019
Pennsylvania State Board of Education, :
                        Respondent :


BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE BROBSON                             FILED: June 4, 2020

                                   I. INTRODUCTION

       Following our remand order in Washington Township Independent School
District    v.   Pennsylvania       State    Board      of   Education,      153     A.3d     1177
(Pa. Cmwlth. 2017) (WTISD I) (en banc), the Pennsylvania State Board of Education
(Board) disapproved the application of Washington Township Independent School
District (WTISD) for assignment from Dover Area School District (Dover SD) to
adjacent Northern York County School District (Northern York SD).1 WTISD
petitions for review of the Board’s adjudication. For the reasons set forth below, we
will reverse and remand.



       1
         In WTISD I, this Court vacated the Board’s November 19, 2015 Order, which, like the
current decision on appeal, disapproved the creation of WTISD and its transfer from Dover SD to
Northern York SD. We remanded with instructions that the Board follow certain administrative
procedures and confine its review of the application to the standards applicable to the organization
of school districts within the Commonwealth.
                                   II. BACKGROUND
      Washington Township is located in the northwest corner of York County,
along York County’s western border with Adams County.                      In York County,
Washington Township borders Franklin Township to the northwest, Carroll
Township to the north, Warrington Township to the northeast, Dover Township to
the southeast, and Paradise Township to the south.                  Franklin, Carroll, and
Warrington Townships lie in Northern York SD, along with Monaghan Township.
Dover SD includes only Washington and Dover Townships.




      The Public School Code of 1949 (School Code)2 provides a mechanism by
which a majority of taxpayers within a municipality may petition the court of
common pleas to establish the municipality as an independent school district for the

      2
          Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 to 27-2702.

                                               2
sole purpose of transferring the municipality from its current school district to an
adjacent contiguous school district. The three-step process involves the court of
common pleas, the Secretary of Education (Secretary), and the Board. In July 2012,
the Washington Township Education Coalition (WTEC) filed a petition with the
Court of Common Pleas of York County (common pleas court), requesting a transfer
of Washington Township from Dover SD to Northern York SD and enumerating its
reasons for asserting that the transfer had educational merit. After conducting a
hearing and confirming that 1,406 of Washington Township’s 1,929 taxable
inhabitants (approximately 73%) had signed the petition, that the petition properly
described the territory, and that the petition set forth WTEC’s reasons for the
requested transfer, the common pleas court referred the petition to the Secretary for
her educational merits review.3
       In evaluating the merits of the petition from an educational standpoint, the
Secretary4 considered the potential impact of the transfer on the Washington

       3
        The initial procedure before a court of common pleas is outlined in Section 242.1(a) of
the School Code, added by the Act of June 23, 1965, P.L. 139, 24 P.S. § 2-242.1(a). As we
explained in WTISD I:
                   In ruling on a petition, the court’s role is strictly procedural, and
              it is not to inquire into petitioner’s alleged reasons for the proposed
              transfer or rule on the merits of those reasons. . . .
              [B]efore approving the petition, the common pleas court must refer
              the petition to the Secretary for a determination of “the merits of the
              petition . . . from an educational standpoint.” Section 242.1(a) of
              the School Code. . . . If the Secretary determines that the petition
              has merit, and the common pleas court determines that the petition
              meets the technical requirements above, the common pleas court
              must order the establishment of an independent school district.
WTISD I, 153 A.3d at 1179-80.
       4
        In July 2014, the Acting Secretary of Education was Dr. Carolyn Dumaresq. (Certified
Record (C.R.) Item No. 3.) Secretary Dumaresq delegated the matter to the Acting Deputy


                                                  3
Township students, the students who would remain in Dover SD, and the students
in Northern York SD. After comparing the respective schools’ performances on
certain educational metrics (SAT scores, proficiency in math and reading, graduation
rates, drop-out rates, truancy rates, and in-school arrest rates), the Secretary
concluded that Northern York SD outperformed Dover SD on each of the metrics.
Ultimately determining that the proposed transfer would have a positive educational
impact on the Washington Township students and that the parties had not presented
sufficient evidence to demonstrate that the transfer would have a negative impact on
the students who would remain in Dover SD or the students in Northern York SD,
the Secretary deemed the petition meritorious from an educational standpoint.
       The     common        pleas     court     thereafter      entered     an     order,   dated
November 10, 2014, creating WTISD and transmitting the matter to the Board for
review pursuant to Sections 292.1 and 293.1 of the School Code, 24 P.S. §§ 2-292.1,
2-293.1.5 A committee of the Board held a multi-day hearing in June 2015.



Secretary for the Office of Elementary and Secondary Education to prepare a pre-adjudication
determination. The Deputy Secretary issued her determination on July 2, 2014. By letter dated
August 7, 2014, Secretary Dumaresq notified the common pleas court that no party appealed the
pre-adjudication determination, as provided in Section 35.20 of the General Rules of
Administrative Practice and Procedure, 1 Pa. Code § 35.20 (“Actions taken by a subordinate
officer under authority delegated by the agency head may be appealed to the agency head by filing
a petition within 10 days after service of notice of the action.”). Accordingly, Secretary Dumaresq
informed the common pleas court that the pre-adjudication determination became the final
adjudication in the matter, and she relinquished jurisdiction to the common pleas court.
       5
        Following approval of the petition by the common pleas court and the Secretary, the
matter moves to the Board under Section 292.1 of the School Code, which provides:
               When an independent district is created by the court of common
               pleas for purposes of transfer from one school district to another, the
               court shall submit to the State Board of Education its decree creating
               such district. Such decree shall be considered an application for the


                                                 4
Ultimately, the committee recommended that the Board disapprove the petition for
the creation of WTISD and its transfer from Dover SD to Northern York SD.
Following an affirmative vote of the majority of its members, the Board adopted and
accepted the committee’s recommendation and disapproved WTISD’s petition.
       WTISD petitioned this Court for review, raising a multitude of issues,
including whether the Board improperly disregarded and/or deviated from the
Secretary’s determination of educational merit, erred in not considering the petition
pursuant to that standard, and erred in not deeming relevant the same measures of
comparison that the Secretary accorded weight. In considering this issue, we
examined the respective roles of the Secretary6 and the Board in the context of




               assignment of said district to the designated administrative unit of
               the approved county plan.
(Emphasis added.)
       6
          The Secretary’s role is set forth in Section 242.1(a) of the School Code, which provides,
in pertinent part:
                   In all cases where an independent district is proposed for transfer
               from one school district to another, the merits of the petition for its
               creation, from an educational standpoint, shall be passed upon by
               the [Secretary] and the petition shall not be granted by the court
               unless approved by him.
We observed that the Secretary’s “authority is not open-ended but instead restricted to the
substantive provisions of the School Code.” WTISD I, 153 A.3d at 1184 (citing In re Petition for
Formation of Indep. Sch. Dist., 17 A.3d 977, 991 (Pa. Cmwlth. 2011) (Riegelsville II)). Further,
analogizing the Secretary’s role to a veto power, we held in Riegelsville II:
               [W]hen the Secretary exercises his [or her] discretion to determine
               whether a proposed transfer has “merit from an educational
               standpoint,” he [or she] must be guided by the policy choices made
               by the legislature in the [School Code] and not by his [or her] own
               personal sense of what constitutes good education policy.


                                                 5
independent school districts for transfer purposes, beginning with Article II,
Subarticle (i) of the School Code,7 which is commonly referred to as the School
Reorganization Act of 1963. As to the Board’s role, we wrote:
                    To accomplish the purposes and goals of the School
                 Reorganization Act of 1963, the General Assembly
                 granted the Board certain powers and duties. First, the
                 General Assembly mandated that the Board, by no later
                 than July 1, 1965, develop statewide standards and
                 procedures to evaluate objectively the performance (i.e.,
                 adequacy and efficiency) of the educational programs of
                 each public school in the Commonwealth. Section 290.1
                 of the School Code.[8] Second, the General Assembly
                 mandated that the Board, within 90 days of the effective
                 date of the act, develop standards for approval of
                 administrative units, which, once approved, would
                 become school districts. Sections 291,[9] 296,[10] 297[11] of

Riegelsville II, 17 A.3d at 991. “This ‘manifest restriction’ on the Secretary’s power is ‘necessary
lest the statute violate the proscription against delegating legislative power to an administrative
agency.’” WTISD I, 153 A.3d at 1184 (quoting Riegelsville II, 17 A.3d at 991).
       7
         Added by the Act of August 8, 1963, P.L. 564, 24 P.S. §§ 2-290 to -298. “The General
Assembly enacted the School Reorganization Act of 1963 because it recognized that the existing
system of more than 2,000 school districts in the Commonwealth was ‘incapable of providing
adequate education and appropriate training for all of the children of the Commonwealth.’”
WTISD I, 153 A.3d at 1185 (quoting Section 290 of the School Code, 24 P.S. § 2-290). “[T]he
primary legislative objective” of the School Reorganization Act of 1963 was “reorganization in
the direction of fewer and larger units.” Chartiers Valley Joint Schs. v. Cty. Bd. of Sch. Dirs. of
Allegheny Cty., 211 A.2d 487, 494 (Pa. 1965) (discussing purpose of School Reorganization Act
of 1963 and upholding its constitutionality). The General Assembly added Sections 242.1, 292.1,
and 293.1 to the School Code through the Act of June 23, 1965, P.L. 139, “in order to provide
additional authority to the Board with respect to the reorganization of school districts.” WTISD I,
153 A.3d at 1186. “During this time, the Board was in the process of performing its statutory
duties under the School Reorganization Act of 1963 . . . .” Id. at 1184-85.
       8
           24 P.S. § 2-290.1.
       9
           24 P.S. § 2-291.
       10
            24 P.S. § 2-296.
       11
            24 P.S. § 2-297.


                                                 6
              the School Code. In establishing these standards, the
              General Assembly required the Board to consider
              “topography,        pupil     population,      community
              characteristics, transportation of pupils, use of existing
              school buildings, existing administrative units, potential
              population changes and the capability of providing a
              comprehensive program of education.” Section 291 of the
              School Code.
WTISD I, 153 A.3d at 1185-86 (emphasis and footnotes added) (footnote omitted).
As to the Board’s role, specifically as it relates to the General Assembly’s enactment
of Sections 292.1 and 293.1 of the School Code, we observed:
              These amendments to the School Code empower the Board
              to either “approve or disapprove the creation and
              transfer” of an independent school district. Section 293.1
              of the School Code. Neither Section 292.1 nor 293.1 of
              the School Code set forth standards or factors that the
              Board should consider in this step of the approval process.
              As we recognized in Riegelsville II with respect to the
              Secretary’s authority, however, the Board’s authority is
              not open-ended, but instead restricted to the substantive
              provisions of the School Code, as supplemented by
              Act 150.[12]
WTISD I, 153 A.3d at 1186 (emphasis and footnote added) (citation omitted).
       Having examined the statutory provisions, we described the Board’s review
as follows:
              [W]e conclude that the Board’s authority under
              Section 293.1 of the School Code derives from and relates
              to the Board’s authority to set standards for the approval
              of the organization of school districts in the

       12
          In 1968, the General Assembly passed the School District Reorganization Act of 1968,
Act of July 8, 1968, P.L. 299, 24 P.S. §§ 2400.1-.10, also referred to as Act 150. The General
Assembly passed Act 150, a supplement to the School Reorganization Act of 1963, to facilitate
completion of the orderly reorganization of school districts required under the School
Reorganization Act of 1963. See Appeal of Borough of Cambridge Springs Sch. Dist., 275 A.2d
840 (Pa. Super. 1971) (en banc).


                                              7
          Commonwealth under Section 292 of the School Code.[13]
          The entirety of the “reorganization” subdivision of the
          School Code, as supplemented by Act 150, is devoted to
          providing procedures and standards for the creation of
          school districts. Today, we presume that Pennsylvania’s
          existing 500 school districts are subject to these standards.
              When it receives the trial court’s decision creating an
          independent school district for transfer purposes, the
          Board is required to treat that decision as an application
          for the assignment of that independent school district to an
          existing school district. Section 292.1 of the School Code.
          In other words, the application is a request to the Board to
          redraw school district lines—i.e., to amend an existing
          plan of organization. In evaluating that request, the Board
          is constrained to apply the standards for the creation and
          organization of school districts, those being the standards
          that the General Assembly directed the Board to develop
          in Section 291 of the School Code and Section 1 of
          Act 150. Both sections provide:
                    The State Board of Education . . . shall
                 adopt    standards    for    approval     of
                 administrative units . . . taking into
                 [account/consideration]    the    following
                 factors:    topography, pupil population,
                 community characteristics, transportation of
                 pupils, use of existing school buildings,
                 existing administrative units, potential
                 population changes and the capability of
                 providing a comprehensive program of
                 education.
          Section 1 of Act 150; Section 291 of the School Code. The
          Board must also consider the following directive of the
          General Assembly, also found in both [Section 293(a) of]
          the School Code[14] and [Section 3 of] Act 150:
                 [N]o plan of organization of administrative
                 units shall be approved in which any
                 proposed school district contains a pupil

13
     24 P.S. § 2-292.
14
     24 P.S. § 2-293(a).

                                       8
      population of less than four thousand (4,000),
      unless when factors of topography, pupil
      population, community characteristics,
      transportation of pupils, use of existing
      school buildings, existing administrative
      units, potential population changes and the
      capability of providing a comprehensive
      program of education are considered by the
      [Board] as requiring the approval of a plan of
      organization of administrative units in which
      one or more of the proposed school districts
      contains a pupil population of less than four
      thousand (4,000).
Section 3 of Act 150; Section 293(a) of the School Code.
   The Board’s scope of review under Section 293.1 of the
School Code must be distinguished from the Secretary’s
“educational merits” review under Section 242.1 of the
School Code. Under the latter, the Secretary is to evaluate
only the educational merit of the petition to create an
independent school district for transfer purposes. Under
Section 293.1 of the School Code, and based on the
standards set forth above, the Board is reviewing not the
petition filed and approved by the Secretary and the
common pleas court, but an application for assignment of
the newly-created independent school district to the
designated receiving school district, as set forth in the
common pleas court’s decree. It must look at the proposed
amendment to the organizational plan and determine
whether the assignment of the newly-created independent
school district to the receiving district would violate the
adopted Board standards or express statutory standards
that govern the organization of school districts. If
allowing the assignment would not violate these
standards, then the Board should approve the amendment
“and direct the Council . . . to make the necessary
changes [to] the county plan.” Section 293.1 of the
School Code. If approval of the application would be
contrary to these standards, then the Board should deny
the application.
    In short, the Board’s review is the third and final review
in a three-part process to seek approval for the creation and
transfer of an independent school district to another
                              9
             existing school district. . . . The common pleas court
             reviews the petition for completeness. The Secretary
             reviews the petition for educational merit. The Board
             reviews the common pleas court’s decree as an application
             in order to determine whether assignment of the
             newly-created independent school district to the receiving
             district would violate standards for the organization of
             school districts adopted by the Board and established by
             statute.
WTISD I, 153 A.3d at 1186-88 (emphasis added and in original) (footnote omitted).
      As to the Board’s initial decision disapproving the creation and transfer of
WTISD, we concluded:
                Turning to the Board’s decision on appeal, it is clear
             from reading both the initial written decision
             (September 17, 2015) and the written decision on
             reconsideration (November 19, 2015) that the Board was
             operating under the false impression that its review in this
             matter was broad and virtually unlimited. The Board cites
             to no standards governing its review in either written
             decision. The Board’s scope and standard of review
             should have been confined to determining whether
             assignment of WTISD to Northern York [SD] would result
             in a reorganization of school districts that violated
             statutory and Board-promulgated standards. Because the
             Board did not so confine its review, we must vacate the
             Board’s decision and remand the matter to the Board for
             review and reconsideration under the proper scope and
             standard of review.
Id. at 1188 (emphasis added) (footnote omitted). In doing so, “[w]e acknowledge[d]
that there could be some overlap between the Secretary’s educational merits review
. . . and the Board’s review . . . , considering the Board’s mandate to consider ‘the
capability of providing a comprehensive program of education’ in setting its
standards for the organization of school districts. Section 291 of the School Code.”
Id. at 1188 n.19.



                                         10
      We vacated the Board’s order and remanded the matter to the Board with
direction
               to treat the common pleas court’s November 10, 2014
               “Order Establishing Independent School District for
               Purposes of Transfer Pursuant to 24 P.S. [§] 2-242.1” as
               an application for the assignment of WTISD to Northern
               York [SD]. Section 292.1 of the School Code. The Board
               shall place this item on the agenda for its next meeting, at
               which the Board must either vote to approve or disapprove
               the application. Section 293.1 of the School Code. As
               noted above, in rendering this preliminary decision, the
               Board must adhere to the proper scope and standard of
               review. If approved, the Board must direct the Council to
               make appropriate revisions to the school district lines. Id.
               If disapproved, the Board must give its reasons for the
               disapproval. Id. Thereafter, if requested by WTISD, the
               Board must hold a hearing confined to its reasons for
               disapproval and thereafter issue an adjudication that
               comports with the [Administrative Agency Law, 2 Pa.
               C.S. §§ 501-508, 701-704].
Id. at 1189.
      On remand, the Board convened on March 9, 2017, to reconsider the
application for assignment, and the Board denied the application. By letter dated
May 11, 2017, the Board memorialized the reasons for its preliminary determination.
First, the Board expressed concern that the application, if granted, would impair the
ability of Dover SD and Northern York SD to provide a comprehensive program of
education for their students. Second, the Board felt that it was unlikely that Northern
York SD’s existing facilities could accommodate the students from WTISD. Third,
the Board expressed concerns about the difference in curricula between the two
school districts, noting that each school district has established a curriculum tailored
to their particular students’ aptitudes, abilities, and interests. Finally, the Board




                                           11
noted that consideration of communities of interest did not weigh in favor of
approving the transfer.
       WTISD requested a hearing. By letter dated May 19, 2017, the Board
appointed a hearing officer and instructed the hearing officer to prepare a proposed
report and order for the Board’s consideration.15 By letter dated August 2, 2017, the
hearing officer sought clarification from the Board regarding various aspects of the
matter. By letter dated September 14, 2017, the Board provided the hearing officer
and parties with instructions regarding the issues to be addressed, the school districts
to be considered, and the burden of proof. In that letter, the Board instructed the
hearing officer to address the factors set forth in Section 291 of the School Code and
in Hoots v. Commonwealth of Pennsylvania, 672 F.2d 1107 (3d Cir. 1982). In April
2018, the hearing officer conducted an administrative hearing over the course of
several days.16



       15
            See 1 Pa. Code §§ 35.202, .205.
       16
          At the hearing, WTISD called Robert Schoch, an education finance consultant, as a
witness. It also elicited the testimony of several residents of Washington Township: (1) Joe
Sieber; (2) Kathy Kennedy Meyer; (3) Ralph McGregor; and (4) John Peters. Intervenor Dover
Area Education Association, PSEA/NEA (DAEA) called Carla Claycomb, Ph.D., an employee of
the Pennsylvania State Education Association (PSEA) in various capacities since 2003, as a
witness. Dover SD offered the testimony of several of its employees: (1) Tracy L. Kum,
Superintendent; (2) Jennifer A. Benko, Business Manager; (3) Jared C. Wastler, Dover Area High
School Principal; (4) Christopher E. Cobb, North Salem Elementary School Principal; and
(5) Charles Benton, Director of Career Education and Academic Services and Dover Area High
School Director of Career and Technical Education Programs. Keep Us in Dover Schools (KIDS),
organized to oppose the transfer of Washington Township to Northern York SD, called the
following witnesses: (1) Rachel Mailey, a parent of students who currently attend Dover SD
schools and a resident of Washington Township; (2) Sandra Sweitzer, a farmer who currently
resides within the boundaries of Dover SD, presumably in Washington Township; and (3) Heather
Dengler, a resident of Washington Township with students who attend schools in Dover SD.
Northern York SD called as a witness its Superintendent, Eric C. Eshbach, Ed.D.

                                              12
      Following the close of the record, the hearing officer issued a proposed report
(Proposed Report), in which he described the standards he applied as follows:
            The standards identified by the Board for consideration are
            as follows: 1) Whether the transfer makes available
            educational programs and educational opportunities to
            meet the varying needs, aptitudes, abilities and interests of
            individuals residing in the district; 2) Whether the
            geographic area (as defined by the re-structured district)
            has developed the characteristics of a community;
            3) Whether the transfer utilizes existing buildings to the
            maximum extent practical avoiding unnecessary new
            construction where possible; 4) Whether pupil population
            changes are supported by reliable studies of area
            development and demonstrate the desirability of the
            transfer; and 5) Whether the transfer demonstrates a
            capability of providing a comprehensive program of
            education. Importantly, the factors set forth by the []
            School Code at 24 P.S. § 2-291, and those articulated by
            the Board are not mutually exclusive. Instead, the two
            frameworks clearly have overlapping aspects and,
            therefore, must be considered in conjunction with one
            another, where possible. This [P]roposed [R]eport is
            being rendered in accordance with the directives
            concerning the factors to be considered, as set forth in the
            Board’s September 14, 2017 correspondence.
(Decision at 41-42.)
      The hearing officer included in the Proposed Report findings of fact,
summarizing the testimony of the witnesses, and the following conclusions of law:
            1.     The Board is not precluded from approving the
            transfer of [WTISD] into [Northern York SD] by 24 P.S.
            § 2-293(a) based upon the student population of each
            school district.
            2.    The evidentiary record establishes by a
            preponderance of the evidence that the [Dover SD] and
            [Northern York SD] will be able to provide
            comprehensive programs of education to their students
            following the transfer of [WTISD] to [Northern York SD].


                                         13
             3.    The evidentiary record establishes by a
             preponderance of the evidence that the transportation of
             [WTISD] students will be enhanced by the transfer of
             [WTISD] into [Northern York SD].
             4.     The evidentiary record does not establish by a
             preponderance of the evidence that the transfer of
             [WTISD] to [Northern York SD] will make educational
             programs and opportunities available which meet the
             varying needs, aptitudes, abilities and interests of
             individuals residing in both school districts.
             5.     The evidentiary record does not establish by a
             preponderance of the evidence that the geographic area
             will reflect the characteristics of the community as a result
             of the transfer of [WTISD] to [Northern York SD].
             6.    The preponderance of the evidentiary record does
             not weigh in favor of transferring [WTISD] to [Northern
             York SD] based upon the use of existing buildings to [the]
             maximum extent practical, and the avoidance of
             unnecessary new construction.
             7.    The preponderance of the evidentiary record does
             not weigh in favor of transferring [WTISD] to [Northern
             York SD] based upon pupil population changes.
             8.    Approval of the transfer of [WTISD] to [Northern
             York SD] would be contrary to the standards adopted by
             the Board. 24 P.S. § 2-291; Hoots v. Commonwealth of
             Pennsylvania, 672 F.2d 1107, 1111 n.3 (3[]d Cir. 1982).
(Decision at 39-40 (emphasis added).)
      Thus, the Proposed Report concluded that the proposed transfer of WTISD
met the standards pertaining to comprehensive programs of education and
transportation but failed to meet standards pertaining to varying needs, aptitudes,
abilities and interests of individuals residing in both school districts; characteristics
of a community; lack of pupil populations studies; and use of existing buildings to
the maximum extent practical and the avoidance of unnecessary new construction.
Following the filing of exceptions, by order dated January 10, 2019, the Board


                                           14
adopted the Proposed Report and, upon a vote by a majority of the members of the
Board, denied WTISD’s application. This appeal followed.
                                          III. ISSUES
       On appeal, WTISD argues that the Board disregarded this Court’s remand
order, directing the Board to apply the statutory and board standards for organization
of school districts when it appointed a hearing officer and directed that hearing
officer to apply different standards. WTISD also argues that, in denying the
application, the Board improperly engaged in a “weighing test” to determine whether
the transfer would be beneficial or desirable, rather than determining simply whether
the transfer met the statutory or adopted Board standards. Finally, WTISD argues
that the hearing officer failed to evaluate the evidence properly, because his findings
merely summarized testimony and did not review the documents admitted as
evidence.
       In addition to the merits, pending before the Court is the Board’s Application
for Leave to File Post-Submission Communication Pursuant to Pa. R.A.P. 2501(a)
(“Board Application”).17
                                      IV. DISCUSSION
                                   A. Board Application
       Our remand order directed the Board to consider WTISD’s application for
assignment to Northern York SD pursuant to the standards for organization of
school districts. Sections 291 and 293(a) of the School Code inform us that the

       17
          The Board has also filed an Application to Strike a portion of WTISD’s answer to the
Board Application, contending that WTISD improperly included the header “New Matter” as an
introduction to certain paragraphs of its answer. Though the Board is technically correct that “New
Matter” is a designation reserved for pleadings, the designation is not material for purposes of this
Court’s consideration of the Board Application. Accordingly, we will deny the Board’s
Application to Strike.

                                                15
General Assembly directed the Board to adopt standards for the organization of
school districts based on certain enumerated factors and not to approve a school
district of less than 4,000 pupils unless the factors enumerated in those sections
required approval of such a small district.
      In reviewing the Board’s actions following remand, we are troubled by the
Board’s failure below to locate, let alone identify, standards for the creation of school
districts despite the General Assembly’s directives in the School Code. We would
have expected these standards to be found in the Pennsylvania Code. Instead, the
Board on remand below directed the hearing officer to follow a 1982 Third Circuit
opinion, Hoots. Hoots addressed challenges to the consolidation of various school
districts that resulted in the creation of racially segregated schools. In a footnote,
the federal court in Hoots refers to Standards for Approval of Administrative Units
that were purportedly adopted by the Board. The federal court, citing an exhibit not
present in the record before this Court, wrote:
             [T]he State Board adopted Standards for Approval of
             Administrative Units. These standards provided, inter
             alia, that:
                    (a) An administrative unit shall make available an
                    educational program and educational opportunities
                    to meet the varying needs, aptitudes, abilities, and
                    interests of individuals residing in the
                    administrative unit.
                    (b) Consideration should be given to whether a
                    geographic area has developed the characteristics of
                    a community. Community, as used here, includes
                    one or more municipalities and the surrounding
                    territory from where people came for business,
                    social, recreational, fraternal or similar reasons.
                    Neither race or religion shall be a factor in
                    determining administrative unit boundaries and
                    differences in the social and economic level of the


                                           16
                    population shall not be a basis to determine these
                    boundaries.
                    ....
                    (c) An administrative unit shall utilize existing
                    buildings to the maximum extent practical avoiding
                    unnecessary new construction where possible.
                    (d) Pupil population changes may be considered in
                    the planning of administrative units where the
                    changes are supported by reliable studies of area
                    development showing past pupil population trends
                    and future projections based on recognized
                    statistical methods.
                    (e) Consideration shall be given to the capability of
                    providing a comprehensive program of education
                    which shall mean the ability to educate and train
                    each child within his capacity to the extent
                    demanded by the immediate requirements of his
                    growth and his relationship to the strengthening of
                    this Commonwealth and nation, and shall include,
                    but not be limited to, wealth per pupil, qualifications
                    of professional staff, enrollment and diversification
                    of curriculum.
Hoots, 672 F.2d at 1111 n.3. It is difficult to discern whether the Third Circuit in
Hoots paraphrased the supposed standards or included them in the footnote verbatim,
and, through the use of the term “inter alia,” it is clear that the summary or recitation,
whichever it may be, is incomplete.
      During oral argument in this matter, we raised our concern about the Board’s
reliance on Hoots and the apparent lack of any published standards for evaluating
WTISD’s application. The Board conceded in its merits brief and during oral
argument that it could not locate standards beyond those set forth in Hoots.
Following oral argument, however, the Board filed the Board Application, claiming
that, with the help of a research archivist, the Board located what it claimed to be the
applicable standards adopted by the Board, as published in the Pennsylvania


                                           17
Bulletin. 1 Pa. B. 196 (August 22, 1970). Inexplicably, these standards do not
appear anywhere in the Pennsylvania Code.
       Nonetheless, while WTISD raises numerous objections to the Board
Application, WTISD does not dispute the fact that the Board, nearly 50 years ago,
published the standards in the Pennsylvania Bulletin. The Pennsylvania Code, the
supplements thereto, and the Pennsylvania Bulletin serve as “the only legal evidence
of the valid and enforceable text” of regulations, statements of policy, or other
documents required or authorized to be so published.                45 Pa. C.S. § 901(a).
Publication of these Board standards in the Pennsylvania Bulletin “creates a
rebuttable presumption that the document was duly issued or promulgated, approved
as to legality, and all requirements otherwise met.” Sullivan v. Dep’t of Transp.,
Bureau of Driver Licensing, 682 A.2d 5, 8 n.4 (Pa. Cmwlth. 1996) (en banc) (citing
45 Pa. C.S. § 905). WTISD does not offer any citation to any subsequent act by the
legislature, the Board, or the courts declaring the published standards invalid,
repealing them, replacing them, or amending them in any material way.
       Accordingly, the Court will grant the Board Application and consider the
published standards in the Pennsylvania Bulletin (Board Standards), to the extent
applicable, in evaluating the merits of WTISD’s appeal of the Board’s
adjudication.18 In doing so, we will apply the Board Standards to the reorganized
school districts, as proposed in the WTISD application. The question, then, is
whether the Board erred in evaluating the question properly before it, that being
whether the reconfigured school districts—new Dover SD and new Northern York

       18
         For ease of reference, we have attached a copy of the Board Standards to this Opinion.
In the Board Application, the Board does not seek a remand to afford it the opportunity to
reconsider its decision in light of the recently uncovered Board Standards. WTISD opposes any
remand for such purpose.


                                              18
SD—meet the applicable statutory and regulatory standards for administrative
units.19
                        B.   Analysis of Grounds for Disapproval
       The Board Standards addressing school district organization are set forth in
Chapters 2-100 (Introduction), 2-200 (Annexation for School Purposes), and 2-300
(Reorganization of School Districts) of the Board’s regulations, as published in the
August 22, 1970 Pennsylvania Bulletin. Notwithstanding WTISD’s arguments to
the contrary, the Board Standards address more than the county-wide reorganization
of school districts mandated by legislation in the 1960s. As section 2-110 of the
Board Standards provides: “The [School Code] carries numerous provisions for
school district organization and changes in school district boundaries.” The Board
regulations reference three types of actions with respect to school district
boundaries:      (1) annexation; (2) school district reorganization; and (3) “minor
changes in school district boundaries without disturbing municipality boundaries.”
Board Standards § 2-110 (emphasis added).
       Using the Board’s terminology, this matter involves a minor change to school
district lines, in that it seeks to relocate an entire municipality from one school
district to an immediately adjacent district. We, therefore, look to Chapter 2-300 of
the Board Standards.

       19
           We emphasize here, as we did in WTISD I, that the General Assembly, in establishing a
mechanism by which petitioning taxpayers could create an independent school district for transfer
to an adjoining existing district, created a framework that required approval of the creation of the
independent school district for transfer purposes and approval of its assignment to the receiving
district unless doing so would create new district boundaries that violate the statutory or regulatory
standards governing school districts. The General Assembly did not bestow upon the Board a veto
power over the judgment of the taxpayers. It also did not empower the Board to weigh the
subjective desirability of the grant or denial of a transfer. This is not an exercise of discretionary
authority within the Board.


                                                 19
                  1. Varying Needs, Aptitudes, Abilities and Interests
       Section 2-352(4) of the Board Standards provides: “An administrative unit
shall make available an educational program and educational opportunities to meet
the varying needs, aptitudes, abilities and interests of individuals residing in the
administrative unit.” 20 Although phrased as a directive, this standard can be applied
in evaluating minor revisions to school district lines. In the context of this matter,
then, the Board could consider whether new Dover SD and new Northern York SD
will be able to meet this directive.
       In addressing this standard, the Board wrote:
               WTISD bears the burden of proving that educational
               programs and opportunities will be available which satisfy
               the varying needs, aptitudes, abilities and interests of
               individuals residing in [Dover SD] and [Northern York
               SD] after the transfer. WTISD fails to make any
               substantive arguments for why the transfer will satisfy the
               varying needs, aptitudes, abilities and interests of
               individuals residing within both Districts after the transfer.
               Instead, WTISD essentially argues that because both
               Districts will be able to offer comprehensive programs of
               education, both Districts implicitly satisfy this standard.
               For the reasons stated above however, the anticipated
               ability to provide comprehensive programs of education is
               not the equivalent of establishing that the transfer will
               satisfy the varying needs, aptitudes, abilities and interests
               of individuals within the Districts.
                  [Dover SD] contends that WTISD has failed to meet its
               burden of establishing that the transfer will make available
               educational programs and opportunities which satisfy the
               needs, aptitudes, abilities and interests of individuals in
               both Districts. Although not expressly stated, the
               underpinnings of [Dover SD’s] assertions rest upon the
               notion that because the programs of instruction within the
       20
         Administrative unit is another term for school district. An administrative unit is defined
as “a geographic area under the control of a single board of school directors.” Board Standards
§ 2-352(1).

                                                20
District are developed and/or approved by the publicly
elected Board of School Directors, they necessarily reflect
the needs, aptitudes, abilities and interests of the residents
within the District. [Dover SD], therefore, contends that
because the transfer will result in [Dover SD] students
losing educational and program opportunities they would
otherwise continue to have absent the transfer, the transfer
will not promote the needs, aptitudes, abilities and
interests of the residents within the District.
    The record demonstrates that [Dover SD] provides
programs of education different from those offered by
[Northern York SD], including the provision of full-day
kindergarten. When addressing the anticipated reduction
in student population resulting from the transfer, [Dover
SD] High School Principal, Jared Wastler, testified that
the classes offered by the High School are based upon
factors which include the students’ graduation
requirements, the sequencing of core courses and space
availability, particularly [Dover SD’s] Career Technology
Education Program. Moreover, several courses have set
requirements on the grade levels at which the students are
able to take the classes. Several of [Dover SD’s] four-year
educational programs traditionally start their Career
Technology Education Program students in ninth grade as
an introductory course which forms the foundation upon
which subsequent courses are offered. The record also
shows that the transfer would result in [Dover SD]
students having reduced educational and extracurricular
opportunities. In particular, Mr. Wastler testified that the
High School would not be able to offer its current course
selection on an annual basis if the number of students fall
below the acceptable range due to the loss of students. He
additionally established that a loss in student population
may also result in Dover High School having to return to
providing combination classes wherein two or three
different level classes are taught in the same room.
    North Salem Elementary School Principal, Christopher
E. Cobb, testified that the transfer will probably require
the North Salem Elementary School to reduce its teaching
staff to two teachers per grade level due to the reduction
in the number of students. Mr. Cobb established that the
loss of one teacher per grade level would preclude the
                             21
         North Salem Elementary School from departmentalizing
         its course structure, and would result in North Salem
         Elementary School reducing the number of its encore
         teachers and services, such as the reading specialist and
         learning support teachers.
             [Dover SD] Director of Career Education and
         Academic Services, Charles Benton, testified that [Dover
         SD’s] philosophy towards its STEM[21] program is
         different from the philosophy of [Northern York SD] which
         is only STEM[-]oriented.           As an example, the
                                  [22]
         agricultural-based CTE        program courses offered by
         [Dover SD] are different from the STEM courses offered
         by [Northern York SD] in that they are approved by the
         Commonwealth of Pennsylvania, are subject to State
         guidelines and are validated by end-of-program
         examinations. Further, [Dover SD] provides full-day
         education at the York County School of Technology,
         while [Northern York SD] offers half-day technical
         programs. [Dover SD] Superintendent also highlighted
         the technology initiatives of [Dover SD], including the
         provision of iPads to students, which are not being
         provided by [Northern York SD].
            As indicated above, Dr. Claycomb opined that [Dover
         SD] High School [s]tudents who transfer to [Northern
         York SD] could potentially lose access to programs of
         study in which they currently participate, including the
         District’s geo-spacial information program, career and
         technical education program, drop-out re-engagement
         program, agricultural educational program, and specific
         pathway programs. [Dover SD] estimates that it will
         experience a net loss of approximately $2.3 million in
         annual revenue (3% of its budget) if the [WTISD] transfer
         occurs. Dr. Claycomb testified that the anticipated lost
         revenue to [Dover SD] may result in loss of programs that
         are currently of value to the local community.
            WTISD’s attempts to counter the foregoing evidence by
         asserting that [Dover SD] will eventually adapt to the
         changes in student population and lost revenue, and will

21
     STEM is the acronym for “Science, Technology, Engineering and Math.”
22
     CTE is the acronym for “Career and Technical Education.”

                                        22
             overcome the “temporary concerns” created by the
             transfer. Despite arguing that academic merit is not a
             factor for consideration in this matter, WTISD also argues,
             in part, that “[g]iven that Northern [York SD] is
             academically superior in every area measured, it is simply
             not credible to argue that the transfer is going to have a
             negative impact of [sic] [WTISD s]tudents.” WTISD’s
             argument bears little weight in that the breadth of the first
             Hoots standard extends beyond the confines of the effect
             the transfer will have on students’ academic experience.
             Instead, Hoots requires an examination of the needs,
             aptitudes, abilities and interests of all those residing within
             [Dover SD]. For that reason, the potential ability by
             [Dover SD] to adjust its student population in the years
             after the merger cannot negate the disruption the transfer
             will have on the District’s existing programs and
             opportunities which, in turn, reflect the fabric, character
             and priorities of the residents of [Dover SD].
             Accordingly, the evidentiary record addressing the
             educational programs and opportunities available which
             meet the varying needs, aptitudes, abilities and interests of
             individuals residing in [Dover SD] fails to support the
             transfer by a preponderance of the evidence.
(Decision at 52-55 (emphasis added) (citations omitted).)
      The Board’s analysis essentially holds that differences between educational
programs offered by the receiving and losing school districts, the anticipated change
in Dover SD’s programs, and inconvenience to Dover SD as a result of the proposed
transfer will result in districts incapable of providing “educational programs and
educational opportunities to meet the varying needs, aptitudes, abilities and interests
of individuals residing in the administrative unit.” See Section 2-352(4) of the Board
Standards. We must conclude that the Board erred in the manner in which it applied
this standard.
      It is undisputed that both school districts currently “meet the varying needs,
aptitudes, abilities and interests of” their students. There is, however, no evidence
or finding by the Board that if WTISD is drawn into Northern York SD, either
                                           23
Northern York SD or Dover SD will be unable to meet this directive as a result.
Certainly, there is a plethora of evidence, much of it the Board credited, of how the
current curricula at Dover SD relating to STEM and vocational-technical training
differ from those of Northern York SD. There is also evidence of differences in how
the school districts deploy technology to support student learning (Dover SD
provides iPads to students). While this evidence shows that some WTISD students
will have a different learning experience in Northern York SD, there is no evidence
in the record to support any finding or conclusion that WTISD students could not
thrive in Northern York SD or, more directly, that Northern York SD cannot and
will not “meet the varying needs, aptitudes, abilities and interests of” those students.
      There is also credited evidence of how Dover SD may have to alter its current
curriculum to account for the loss of WTISD students. Indeed, the testimony of
Dover SD witnesses shows that Dover SD can, if necessary, adapt. No witness
testified that Dover SD cannot make the necessary adjustments and still meet the
varying needs, aptitudes, abilities and interests of the students remaining in Dover
SD. The Board standards do not require the applying independent school district to
establish that the losing school district will be able to preserve every existing
program post-transfer.    Nor does it require the independent school district to
establish that the transfer will impose no inconvenience or disruption on the losing
district or its remaining student population. That, however, is how the Board
interpreted this particular standard. In that regard, the Board erred. If we allow this
error to stand, the mountain that an independent school district would have to climb
before the Board would be insurmountable.
      In sum, the Board erred as a matter of law in how it applied this particular
standard to the WTISD application. Rather than focus on whether both school


                                          24
districts, post-transfer, will be able to “meet the varying needs, aptitudes, abilities
and interests of” their new student populations, the Board improperly pitted one
district’s existing curriculum and offerings against the other’s and made
inconvenience and disruption to Dover SD the paramount focus of its legal analysis.
In reality, even based on the evidence and findings of the Board, we have no doubt
that both Northern York SD and Dover SD will be able to meet this Board standard
post-transfer, even if they have to adapt their existing programs of instruction and
curricula to do so.
                           2. Community Characteristics
      Section 2-352(7)(c) of the Board Standards provides:
             Consideration should be given to whether a geographic
             area has developed characteristics of a community.
             Community, as used here, includes one or more
             municipalities and the surrounding territory from which
             people come for business, social, recreational, fraternal or
             similar reasons. Neither race nor religion shall be a factor
             in determining administrative unit boundaries and
             differences in the social and economic level of the
             population shall not be a basis to determine these
             boundaries.
In its directions to the hearing officer, the Board asked that the hearing officer hear
and consider whether the geographic area of the new Northern York SD has
developed the characteristics of a community. Implicit in the Board’s direction is
its view that municipalities will only be approved for transfer if the municipality has
an existing community connection to the receiving school district.
      In terms of fact finding, the Board found the evidence was insufficient to
establish that the new Northern York SD, with WTISD, will reflect the
characteristics of the community. It reasoned:
                The evidentiary record on this issue almost exclusively
             took the form of anecdotal evidence comprising
                                          25
             witness[es]’ personal preferences rather than the
             presentation of empirical or statistical evidence. Based
             upon the testimony provided, each party is found to have
             presented evidence of equal weight regarding whether the
             residents of Washington Township most closely identify
             with the character of the current Dover [SD] boundaries,
             or with the anticipated character of the community
             resulting from the transfer. Because WTISD bears the
             burden of proving by a preponderance of the evidence that
             Washington Township has developed the character of the
             community to be formed by the transfer, and because the
             record fails to establish through substantial evidence that
             the residents of Washington Township more closely
             affiliate themselves with the character of the post-transfer
             community, WTISD has not sufficiently satisfied its
             burden on this issue in support of the transfer.
(Decision at 56 (citations omitted).)
      We again take issue with how the Board has applied one of the statutory and
regulatory standards to the minor school district revision sought by WTISD. This
particular standard, such as it is, requires only consideration of whether a
geographic area (not a proposed administrative unit) has developed characteristics
of a community. The clear concern here was that when the counties proposed new
school district lines, in response to the legislative directives in the 1960s to create
fewer and larger school districts, they were to pay careful attention to avoid, if at all
possible, breaking up communities in the process. Unlike the Board, we do not read
this standard as requiring counties to establish through their county plans that each
proposed administrative unit enjoys an existing and established community bond.
Again, that would be too steep a hill to climb. The counties could, however, draw
the administrative units in a way to avoid, as much as possible, breaking up
communities.
      Properly interpreted, then, the statute and regulation require the Board, in this
instance, to consider whether the transfer of WTISD to Northern York SD divides,

                                           26
or breaks up, a community. Considering that we are here evaluating the transfer of
an entire municipality from one school district to another, a minor revision, this
standard is easily met. The Board’s regulation defines community as including, inter
alia, a municipality. Here, Washington Township (by over 70% of its taxpaying
residents), a community, has expressed its desire through the petition process
authorized by the General Assembly to move its community from Dover SD to
Northern York SD. The will of that community cannot be set aside by anecdotal
evidence of some residents who oppose the transfer.
      We are not discrediting the notion that some in Washington Township have
developed a sense of community within Dover SD. That, however, is likely the case
in every instance where a municipality invokes the statutory process to move to
another school district.    Longstanding school district lines create a sense of
community. Every petition to establish an independent school district for transfer
purposes under the School Code proposes to break up an existing school district.
The General Assembly understood this when it passed the legislation. It could not
have intended that proposed breakup to also be a basis for denying the petition. Yet,
that is how the Board has applied the standard in this case. It did so in error.
      In short, the Board committed legal error in its application of the community
considerations standard. WTISD’s application for assignment proposes transfer of
an entire community—Washington Township—to Northern York SD. There is no
finding by the Board or evidence in the record to suggest that the assignment, if
allowed, will result in breaking up some other community.                Accordingly,
consideration of community characteristics does not warrant denial of the
application for assignment of WTISD to Northern York SD.




                                          27
                       3. Use of Existing School Buildings
      Section 2-352(7)(e) of the Board Standards provides: “An administrative unit
shall utilize existing buildings to the maximum extent practical avoiding
unnecessary new construction where possible.”        The Board, in analyzing this
standard, wrote:
                WTISD addresses this standard in its Post-Hearing
            Brief by asserting that the proposed transfer is anticipated
            to have a beneficial impact on [Dover SD] by relieving
            some of the overcrowding experienced by the District.
            WTISD additionally asserts that “Northern [York SD] will
            not need any additional new construction . . . .” Although
            the record supports the argument that a reduction in
            student population and the construction of its new High
            School may alleviate current overcrowding within [Dover
            SD], the record equally shows that the existing
            infrastructure within [Northern York SD] is inadequate to
            accommodate the additional students anticipated by the
            transfer.
                Superintendent of Schools, Dr. Eshbach, opined that
            the transfer of 250-300 students from [Dover SD] to
            [Northern York SD] would be “significant”. Dr. Eric
            Eshbach’s Statement to the [Board], revised
            March 7, 2018, stated, in part, “To accommodate this
            anticipated increase in enrollment [approximately 300
            students], new classrooms and shared-use space must be
            added to the existing facilities at the Wellsville
            Elementary School and the Northern Middle School” in
            [Northern York SD]. The record shows that the
            elementary schools within [Northern York SD] are at 80%
            capacity. However, the addition of students from
            [WTISD] would increase the capacity of the District’s
            middle school to 93%. Dr. Eshbach qualified the remarks
            in his report to a small degree at the hearing by testifying
            that although the addition of students to Wellsville
            Elementary School will not require additions to the school,
            it would nevertheless require using current spaces in
            different capacities and would have an impact on
            [Northern York SD’s] educational program.

                                        28
                 The record also shows that the Northern York County
             Policy Manual limits its middle school class size to 28-35
             students. For that reason, [Northern York SD] anticipates
             the need to rapidly renovate its middle school to properly
             accommodate the additional students it would receive
             through the transfer of [WTISD] students into the District.
             Dr. Eshbach established that the addition of students
             through the transfer of [WTISD] students would cause
             class size to exceed that range, absent renovations. He
             also anticipates the need for [Northern York SD] to expand
             its middle school cafeteria and add or expand some
             classrooms and common spaces should the transfer occur
             because the current middle school does not have space to
             add another teaching team to the building. Dr. Eshbach
             also testified that, in terms of funding, [Northern York SD]
             would probably require the suspension of some of the
             PlanCon rules established by the Commonwealth in order
             to renovate its middle school in a timely manner. Based
             on the foregoing evidence, the record fails to establish that
             the transfer would utilize existing buildings to the
             maximum extent practical so as to support the proposed
             transfer.
(Decision at 56-58 (citation omitted).)
      As with the standard above relating to communities, this standard seems to be
more relevant to the reorganization of school districts mandated by the General
Assembly. We note that the standard does not prohibit new construction; rather, it
requires school districts to do two things: (1) utilize existing buildings to the
maximum extent practical; and (2) avoid unnecessary new construction. To the
extent this standard can be applied when considering an application for the
assignment of independent school districts, as the Board attempted to do, the
assignment does not violate the standard.
      The evidence and the Board’s findings reveal that Northern York SD has the
ability to absorb the additional students with limited renovations to and repurposing
of existing space at its schools. Through renovations and repurposing, Northern

                                          29
York SD will be using its existing buildings “to the maximum extent practical,”
avoiding the construction of new buildings.       The Board, therefore, erred in
concluding that the transfer would not meet the standard relating to the use of
existing buildings.
                        4. Studies of Population Changes
      Section 2-352(7)(b) of the Board Standards provides the following with
respect to pupil population changes:
             Pupil population changes may be considered in the
             planning of administrative units when the changes are
             supported by reliable studies of area development showing
             past pupil population trends and future projections based
             on recognized statistical methods. Examples of reliable
             studies of area development are those made by planning
             commissions, public utility companies and established
             survey agencies.
(Emphasis added.) Similarly, Section 2-352(7)(g) of the Board Standards provides
the following with respect to population changes generally:
             Population changes may be considered in the planning of
             administrative units when the changes are supported by
             reliable studies of area development showing expansion of
             the area and by growth projections based on recognized
             statistical methods. Examples of reliable studies of
             population growth beyond a normal projection are those
             made by planning commissions, public utility companies
             and established survey agencies.
(Emphasis added.)
      The Board, in addressing these standards, wrote:
                WTISD advocates for the transfer of [WTISD]
             students, in part, due to anticipated growth within [Dover
             SD] which, it contends, will place an enormous strain on
             the District’s resources. In support of that argument,
             WTISD relies primarily upon the testimony of its expert,
             Mr. Schoch, and upon observations made by several
             witnesses from within the community who drove through

                                        30
what was described at the hearing as new residential
communities within [Dover SD]. Mr. Schoch opined that
[Dover SD’s] student population is expected to increase
by approximately 3,000 students due to new construction
of residential communities over the next ten (10) to twenty
(20) years. Accordingly, WTISD argues that the transfer
of approximately 250 students from [Dover SD] to
[Northern York SD] will alleviate some of the District’s
overpopulation and, therefore, supports the transfer.
    In contrast, [Dover SD] opposes the transfer on
economic grounds by challenging Mr. Schoch’s
contention that [Dover SD] will be able to recover the
revenue loss from the transfer through a combination of
residential growth within the District and cost
containment. Like their arguments that the transfer will
degrade the Districts’ abilities to provide comprehensive
programs of education, [Dover SD] and DAEA argue that
the revenue loss from the change in student population due
to the transfer will, in turn, result in sufficient diminished
educational opportunities for [Dover SD] students to
justify the denial of the transfer. The District also asserts
that Mr. Schoch failed to present sufficient evidence that
the change in student population from the transfer will
benefit [Northern York SD].
   In its September 14, 2017 correspondence, the Board
described this factor as “Whether pupil population
changes are supported by reliable studies of area
development and demonstrate the desirability of the
transfer.” The Court in Hoots described this factor
somewhat differently as permitting consideration of pupil
population changes “in the planning of administrative
units where the changes are supported by reliable studies
of area development showing past pupil population trends
and future projections based on recognized statistical
methods.” Hoots, 672 F.2d at 1111 n.3. None of the
parties have cited to any legal authority, and the [hearing
o]fficer is not aware of any such authority which
specifically addresses this factor in detail.
   In Hoots v. Commonwealth of Pennsylvania,
359 F. Supp. 807, 809 (W.D. Pa. 1973)[,] and its progeny
however, this factor was addressed in the context of a class
action lawsuit which contested plans of reorganization and
                             31
consolidation of school districts which the plaintiffs
contended were racially segregated. Id. at 809. Unlike
this case where the transfer of approximately 250-300
[WTISD] students is the salient issue, the courts’
consideration of this factor in the Hoots cases primarily
focused upon whether greater demographic shifts favored
consolidation, as reflected by past pupil population trends
and future population projections. For that reason, the
[hearing o]fficer interprets the factor articulated by the
Board as calling for a determination of whether greater
student population trends in each school district, as shown
through reliable studies of area development, support the
transfer. Because the arguments advanced by [Dover SD]
and DAEA on this issue pertain to the ability by [Dover
SD] to continue to provide a comprehensive education to
its students after the transfer, and/or the ability of both
Districts to provide qualified professional staffs and
diversified curricula, they are not materially relevant to
this factor but, instead, are more particularly suited to
other factors already discussed herein.
    WTISD presented evidence of student population
trends, to some degree, primarily through Mr. Schoch.
Mr. Schoch opined that [Dover SD’s] student population
is expected to increase by approximately 3,000 students
due to new construction over the next ten (10) to twenty
(20) years. However, he was unaware of whether Dover
Township or Dover Borough has begun the development
of new residential properties or whether there are any
housing development plans within Washington Township.
For that reason, WTISD’s evidence regarding current,
and/or new development consisted, in large part, of
testimony and general observations of lay witnesses who
had merely driven through various residential
communities in the area. WTISD also relies upon the
growth projections over the next 10 to 30 years reflected
by the new Dover Township High School’s increased
capacity of approximately 200 students.
   Mr. Schoch did not speak with any members of
[Northern York SD] or [Dover SD] as part of his review.
Accordingly, Mr. Schoch’s analysis regarding [Dover
SD’s] growth potential was admittedly based upon his
review of a Joint Comprehensive Plan/Growth
                            32
             Management Plan for Dover Borough/Dover Township
             Region developed approximately ten years ago, in
             January 2008. Mr. Schoch conceded that although the
             Comprehensive Plan set forth 20-year growth projections
             using 2006 statistics, the projections within the plan have
             not come to fruition in the 10 years since the Plan’s
             creation. Notably, he has not conducted a similar analysis
             of residential growth or building capacity in [Northern
             York SD]. For that reason, the record on this issue
             comprises mostly of speculative student population
             growth estimates from residential housing units, without
             knowing how many students per house, if any, will exist,
             or if and when the developments will achieve build-out.
             Although he had conducted an analysis of [Dover SD’s]
             population projections based, in part, upon the York
             County Planning Commission’s population projections,
             Mr. Schoch admitted to not having conducted a similar
             analysis for [Northern York SD]. Nor has he made similar
             projections for [Northern York SD]. Upon consideration
             of the foregoing, the [hearing o]fficer finds that the growth
             projections offered by the WTISD on the basis of possible
             residential development and the capacity increase of the
             High School of 200 students over the next 10 to 30 years
             are too speculative to constitute a preponderance of the
             evidence that the transfer is desirable based upon
             anticipated pupil population changes, as shown through
             reliable studies of area development and future
             projections.
(Decision at 58-61 (emphasis added) (citations omitted).)
      We agree with WTISD that the Board erred as a matter of law in how it applied
these standards to the application for assignment. Importantly, there is nothing in
the Board Standards that requires an independent school district for transfer
purposes to prove, by population studies, the “desirability” of the application for
assignment. It was clear error by the Board to impose such a nonexistent burden on
WTISD. Rather, the population studies standards, like other standards in the Board
Standards, appear to be linked to legislative directives in the 1960s to create larger
and fewer school districts in the Commonwealth, with a 4,000 pupil average daily
                                          33
membership goal per district, at a minimum. As part of the reorganization, a county
board of school directors could use “reliable studies” to justify its proposed plan of
reorganization and how the plan satisfies that statutory pupil population standard.
       To the extent this standard could be applied in this situation—a minor revision
to existing district lines to transfer an entire municipality to an adjacent school
district—the standard would likely only come into play if the proposed transfer of
an entire municipality would, from a population perspective, dramatically and
materially alter pupil populations in the losing and receiving school districts.
The proposed transfer of students cannot overwhelm a receiving district with pupils
it cannot reasonably accommodate nor result in the losing district becoming so small
that it cannot reasonably operate at the time of transfer or for a reasonable period
into the future, taking into consideration anticipated increases or decreases in pupil
population.
       Neither the evidence nor the Board’s findings support such a dramatic and
material shift of student population in this matter. Both Northern York SD and
Dover SD currently have fewer than 4,000 pupils (between 3,000 and 3,500
students),23 meaning both are already below the statutory minimum threshold. That



       23
            Dover SD is the larger of the two. For the 2016-2017 school year, Dover SD’s
enrollment was 3,499 students. (C.R., Hearing Exhibits, at 000046.) Northern York SD’s
enrollment for that school year was 3,192 students. (Id. at 000052.) These numbers are in accord
with enrollment data maintained by the Pennsylvania Department of Education
(Department), https://www.education.pa.gov/Documents/Data%20and%20Statistics/Enrollment/
Enrollment%20Projections/School%20District%20Enrollment%20Projections.pdf (last visited
June 4, 2020). For the 2018-2019 school year, the last school year reported by the Department,
Northern York SD’s student population was 3,224. Dover SD’s student population was 3,516.
Roughly speaking, then, the transfer of WTISD to Northern York SD will yield redrawn school
districts that are roughly equal in size from a pupil population perspective.


                                              34
will not change if the Board approves the application for assignment.24 The shift of
student population would be approximately 250 pupils to Northern York SD, or
roughly 7% of the Dover SD student population. As noted above, the Board’s
findings and the evidence support the conclusion that Northern York SD is capable
of absorbing the additional student population.
       Dover SD presses its concern over the financial impact of the transfer.
According to its Business Manager, Ms. Benko, the loss of revenue to Dover SD
resulting from the transfer could be approximately $2.3 million. (Board Finding of
Fact (FF) # 93.)            According to Mr. Schoch, this loss of revenue is
approximately 3% of Dover SD’s annual budget of approximately $75 million.
(FF ## 21, 22.) Ms. Benko further testified that Dover SD anticipates the need to
increase property taxes, furlough professional employees and staff, and modify
curriculum if the transfer is approved. (FF ## 96, 100.) Nonetheless, Ms. Benko
testified, and the Board found, that Dover SD “has not . . . conducted a
comprehensive analysis of ways to reduce expenses following the transfer.”
(FF # 96.)
       Every transfer of a municipality from one school district to another will have
a financial impact on both the receiving and losing districts. The General Assembly
acknowledges this in the School Code, requiring the court of common pleas, in its
decree establishing an independent school district for transfer purposes, to
“determine the amount, if any, of the indebtedness and obligations of the school
district, from whose territory such independent district is taken, that said district shall
assume and pay, and, a statement prorating the State subsidies payable between or

       24
          It is for this reason that we reject DAEA’s contention that the proposed transfer “would
result” in school districts with disfavored pupil populations—i.e., below 4,000 students. These
school districts are already below the preferred minimum threshold for student population.

                                               35
among the losing district or districts and the receiving district.” Section 242.1(a) of
the School Code. What the testimony and fact finding by the Board show is that
Dover SD may face some difficult business choices as a result of the transfer. Dover
SD does, however, have choices. In other words, there is no evidence in the record,
or finding by the Board, that Dover SD cannot weather the financial consequences
of the transfer. Indeed, as we have noted above, the evidence of record and the Board
findings show indisputably that Dover SD and Northern York SD can adapt,
academically and financially, to the transfer and still meet the standards for school
districts under the School Code and the Board’s regulations.
      In short, the Board’s factual findings and the evidence of record establish that,
from a pupil population perspective, the transfer of WTISD from Dover SD will not
overwhelm Northern York SD with students that it cannot reasonably accommodate
nor result in Dover SD being reduced to such a size that it cannot reasonably operate
after the transfer. The Board, therefore, erred in concluding that the transfer would
violate standards relating to pupil population.
                                    C. Effective Date
      Northern York SD has remained neutral on the merits of both the original
petition to establish WTISD for transfer purposes and the application for approval
of the assignment of WTISD to Northern York SD. Its paramount and laudable
focus has been on securing a reasonable transition period with oversight to provide
a comprehensive program of education to its current students while planning to do
the same for its future students.
      Section 226 of the School Code, 24 P.S. § 2-226, provides the following with
respect to transition:
                     If any new school district is made by the creation of
             any . . . independent school district, . . . or if the boundary

                                           36
               lines of any school district are changed, by reason of the
               changing boundary lines of any . . . independent school
               district, then, in any such case, the change, so far as it
               relates to school districts or school affairs, shall take effect
               at the beginning of the first school year after such . . .
               independent school district has been created . . . or such
               change in boundary lines permanently affected.
(Emphasis added.) The common pleas court created WTISD for transfer purposes
in November 2014. We cannot make the new boundaries retroactively effective to
the 2015-2016 school year. The fallback, then, is the first school year after such
change in boundary lines is permanently affected.
       We agree with Northern York SD that a reasonable period of transition is
necessary, particularly because both districts have been operating under a period of
uncertainty over the last five years while this matter has been slowly making its way
through the common pleas court, the Secretary, the Board, and now this Court. Both
school districts must have a reasonable period of time to plan academically and
financially for their new student populations.
       Accordingly, and consistent with governing law, we will remand this matter
to the Board with direction that it make revisions to the York County plan of
organization of school districts to reflect the assignment of WTISD to Northern York
SD effective with the 2021-2022 school year.25 The Board should then transfer the


       25
           The COVID-19 pandemic has placed a tremendous stress on our school districts and
students. Effective March 16, 2020, Governor Tom Wolf indefinitely suspended in-class
instruction at brick and mortar schools throughout the Commonwealth. On April 9, 2020, he
extended the school closure order for the remainder of the 2019-2020 school year. School districts
have moved to distance learning platforms in an effort to educate their student populations and
complete the academic year, and extracurricular activities and interscholastic athletic competitions
have been cancelled. With lingering uncertainty as to when these and other COVID-19 precautions
will be lifted, an effective date of the 2020-2021 academic year will place too much stress on
already burdened school districts as they attempt to manage the remainder of this academic year
and plan (hopefully) to return to some sense of normalcy next school year.

                                                37
matter back to the common pleas court to oversee the implementation of the
reassignment. In particular, but without limitation, the common pleas court must
“determine the amount . . . of indebtedness and obligations of [Dover SD], [if any,
that Northern York SD] shall assume and pay, and, a statement prorating the State
subsidies payable between or among [Dover SD] and [Northern York SD].”
Section 242.1(a) of the School Code.
                                V. CONCLUSION
      For the reasons set forth above, the Board erred in its evaluation of the
standards for the organization of school districts set forth in the School Code and the
Board’s regulations as applied to the application for approval of the assignment of
WTISD to Northern York SD. As neither the Board’s fact finding nor the evidence
of record show that the assignment will result in school districts that do not meet
statutory and Board standards for administrative units, we will reverse the Board’s
decision denying the application and remand the matter to the Board for further
proceedings consistent with this Opinion.




                                          P. KEVIN BROBSON, Judge


Judges Cohn Jubelirer and Fizzano Cannon did not participate in the decision of this
case.




                                          38
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Washington Township Independent        :
School District,                       :
                      Petitioner       :
                                       :
            v.                         :   No. 142 C.D. 2019
                                       :
Pennsylvania State Board of Education, :
                        Respondent :



                                   ORDER


      AND NOW, this 4th day of June, 2020, the order of the Pennsylvania State
Board of Education (Board), dated January 10, 2019, is REVERSED. This matter
is REMANDED to the Board for further action in accordance with the
accompanying Opinion.
      The Board’s Application for Leave to File Post-Submission Communication
Pursuant to Pa. R.A.P. 2501(a) is GRANTED. The Board’s Application to Strike is
DENIED.
            Jurisdiction relinquished.




                                         P. KEVIN BROBSON, Judge
