Just about everyone who has tried a custody case has been called upon to present a “school choice” dispute. These are the ones where Springfield High is pitted against Bayside High or Chilton Prep in the race to see which school is most likely to produce a better child. These are often illusory battles that rarely correlate to the ultimate outcomes but if you are a judge trying to assess what’s in the child’s best interests, it is evidence you need to hear.

They present evidentiary problems for the litigants. There are lots of services out there that profess to evaluate schools. Two of the more prominent ones are U.S. News & World Report and Niche. Then there’s the GreatSchools.org. When lawyers try school selection cases, they download the data knowing it comes pregnant with evidentiary problems.

Hearsay is a statement uttered outside the courtroom by a person never brought inside that courtroom to prove the truth of the matter asserted. The rule of evidence excluding it can be traced to the reign of Charles II (we are now at Charles III but with a gulf of 300+ years.)  As the lawyer prepares his school selection case he sees that the school his client has chosen outranks that selected by the other parent. It’s a Eureka moment until the lawyers comes down to realize that (a) we have no idea how these valuation services actually weigh school performance (b) no individual names are given to the people who actually make the rankings and (c) even if we knew those individuals, we are not going to persuade them to come to a courtroom in Pennsylvania to offer testimony about what makes Springfield better than Bayside or Chilton Prep. These statements opining on the merit of the schools were made far away and we do want to introduce them as “truth.” It’s hearsay, plain and simple.

This problem is a piece of the March 26 ruling by the Superior Court in O’Patchen v. Thompson. The battle in Allegheny County had to do with two kids (ages 10 & 7) and two public school districts, Upper St. Clair and Chartiers Valley. The spoiler alert is the patron saint of sore eyes and television won after the trial court found that district had a better reputation, was more proximate and because the kids seemed to be suited to adjust to a new district.

Part of the focus of the appeal was the better reputation finding by the trial court. During her testimony Mom presented “a chart of data she collected from the [Pa] Dept. of Education and ratings from the Great Schools website. In response, Father offered “anecdotes from people who had attended both schools.” So, it’s clear who had the better evidence. But, it’s just as clear that both were “out of court statements related to the truth of the matter asserted” i.e.., which school is better. 225 Pa. Code 801(c). As such it’s not admissible under 225 Pa. Code 802 unless you can squeeze into the exceptions of 225 Pa. Code 803. There are 25 exceptions but almost none relate to something as mundane as school evaluation studies performed by business services. The one that comes into play is 803(17) which allows “Market Reports and Similar Commercial Publications” relied upon by the public or people in occupations who make use of such reports. In theory, people in the general public who are choosing between two or more school districts might rely on these services when choosing where to locate a home. But the exception talks about “general reliance” in a way that suggests used “regularly” as in a metals broker checking the Wall Street Journal or websites like AMPEX and KITCO to determine what to pay each day for fabricated silver. Some judges will admit the school valuations as a market report, some will not.

But in this case when the Father objected to the out of court school rankings noting that there was no author or data source to be found, the court acknowledged the accuracy of those assertions but admitted the reports anyway as “relevant evidence of Mother’s attempts to discuss the merits of the schools with Father.” These documents, according to the Superior Court were admitted as showing “mother’s course of conduct” and to “demonstrate the effect of these documents on Father.” Meanwhile the trial court opinion states that these out of court statements evaluating the two school districts “make it clear that Upper St. Clair….is one of the best school districts in the Greater Pittsburgh Area.” Just as strange is the assessment that Father somehow waived this issue because these reports were presented to him by Mother’s counsel while cross examining Mr. O’Patchen. How a man is able to authenticate exhibits he did not prepare evaluating schools in western Pennsylvania remains a bit of a mystery. His list of matters he wanted reviewed on appeal included his objection to the school ranking evidence. (Item 2) School choice wars can become absurd. The children in this case testified weighing in on the subject as elementary age kids are wont to do. The ten year old offered that some of the people who lived in Chartiers Valley were “mean” although she did love her time there. The fifth grader also judged that the cheerleading program at Upper Saint Clair was superior as was the pool in that community. Her mother was excited about the International Baccalaureate program at Upper St. Clair. It turns out that the International Baccalaureate Program begins in pre-school and is dedicated to “ideals of international understanding and responsible citizenship.”

As mentioned, the best observation I have heard on this topic came from a judge before whom I was trying one of these cases long ago. The kids were in a suburban Philadelphia school ranked as No. 7 in Pennsylvania. My client wanted to relocate them to a suburb of Princeton, NJ. On the numbers, the Princeton school came out better than the great one the kids were in.  When I started down that road, my worthy opponent offered her hearsay objections and we then started the debate over whether these were “market reports.” After a few minutes of this the judge interrupted: “Look counsel, I hear your arguments. One school I know all too well. My kids went there. The other one is in another state and I know nothing about it. I need to know these things to make a competent decision so the reports are coming in over the objection.” Perhaps the General Assembly could accommodate the “need” with an amendment to the relocation statute allowing this hearsay. Perhaps the appellate courts could decide whether these are market reports. Admittedly the precedent is against it. Back in 1983 the appellate courts decided that the market summaries of estimated car values (then red, now bluebooks) could not be used as evidence. Savoy v. Beneficial Consumer 468 A.2d 465. (Pa. 1983); See also M.S. v. J.K 2021 WL 3629972 (Pa.S. 2021).

There just needs to be a better way.

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