Through the Rear View Mirror: 2005 in Review

Special to School Transportation News*

School transportation was once again the focus of a number of court cases during the past year. This segment of "Through the Rear View Mirror" will focus on legal matters related to liability where contractors provide transportation, and on employment issues. I've included an interesting case about charter schools. Part II next month will focus on special needs transportation and student injuries.

Contractors and School District

Duval County School Board v. Kebert, 2005 Fla. App. LEXIS 13280 ( Aug. 23, 2005 ) . A motorist was injured when her vehicle was hit by a contractor-owned school bus. Under Florida statute, the school board was not liable since the company had the necessary insurance coverage, and properly inspected and maintained buses

Hamlin v. City of Peekskill Board of Education, 377 F.Supp. 2d 379 ( July 13, 2005 ) . A student with special needs sued after she was allegedly coerced by another student into committing a sexual act on the school bus. Where the school district had contracted with a well-known transportation provider, and the company bound to comply with all applicable laws, the district would not be liable. Moreover, the district had no notice that the student had ever been previously abused by this student or any student, nor had there been notice of "any special issues relating to her transportation (such as need to keep her away from boys.)"

Doe v. Rohan, 793 N.Y.S.2d 170 ( April 18, 2005 ) . The district and company learned of a driver's on-going abuse of a 9-year-old student from another student's father. The driver had no prior criminal history, no prior complaints of improper conduct during his 27 years of driving, and a previously spotless employment record. In light of lack of notice to either the district or company, and the fact that the driver was acting outside the scope of his employment, neither the district nor the company could be held liable.

Employment

Mobile County ( Ala. ) Board of School Commissioners, 2005 WL 2595320 (Labor Arbitration Information System, Feb. 9, 2005 ) . A veteran driver's successful record ended after 22 years when parents complained about her driving, her late bus arrivals and use of profane language. The district did everything possible to help her improve, until a parent saw her driving her route in reverse and she failed to properly obtain a substitute driver when she was absent. An arbitrator upheld her termination for just cause.

Cook v. Gwinnett County School District , 414 F.3d 1313 (11th Circuit, June 29, 2005 ) . Driver/team leader Cook lost her additional benefits as a team leader shortly after she actively engaged in union activities and raised issues around student safety. The driver sued, claiming violation of her First Amendment Rights to speech and free association. The court found in Cook's favor: "Cook's interests in promoting safety and improving the competency, management, and organization of district bus drivers far outweighed the scant evidence that the district offered in support of its workplace efficiency argument." It further agreed that the non-disruptive nature of Cook's unionizing supported her free association claims.

Southerland v. Sycamore Community School District, 2004 U.S. App., LEXIS 26619, 6th Circuit, (Dec. 2004) . Driver-to-driver sexual harassment cost a district $50,000 in damages because the district failed to fire the offender, or take effective steps to end the harassment. Liability resulted because, given the school district's awareness of the on-going pattern of harassment, its remedy "exhibits such indifference as to indicate an attitude of permissiveness that amounts to discrimination."

Green v. Dallas County Schools, 2005 U.S. Dist. LEXIS 13637 (July 6, 2005) . In this Fair Labor Standards Act (FLSA) case, bus monitor Green asked to participate in a Department of Labor-initiated investigation. She complained that she worked only 20 hours per week on average, but that she worked 8 hours/day while being paid for only 6 hours. Her statement was unsworn and contradictory, but reflected that she was paid more than the statutory minimum wage. Therefore, the DOL found no violation of the minimum wage rules. And, because she never worked more than 40 hours in a week, the district could not have violated the FLSA's rules regarding overtime compensation, because Green wasn't entitled to receive overtime.

Evans v. Bossier Parish School Board, 2005 Louisiana Appellate 2 nd Circuit (May 11, 2005) . A school bus driver filed a lawsuit as a result of injuries received in a struggle with an autistic and mentally disabled student on the bus. The driver asserted that the district knew or should have known that she was substantially certain to be injured, thus providing an additional remedy beyond the provisions of the worker's compensation statute. The court explained that, under Louisiana state law, the plaintiff had to show more than a reasonable probability that an injury will occur. The court found that deliberate decisions regarding the adult-student ratio on the bus, the procedures for handling a disruptive child, and the training of Evans and the aide did not amount to acts which exposed Evans to a substantial certainty of harm. In contrast, Evans' own decision "to pick the child up, instead of taking less strenuous physical action or calling the child's parent, demonstrates that her own negligence arguably contributed to her injury."

Charter School transportation

Racine Charter One, Inc. v. Racine Unified School District, 7th Circuit (Sept. 22, 2005). An independent public charter school alleged that the district's refusal to bus charter school students violated federal law. The school's claim depended upon its convincing the court that it was actually an independent public school district under Wisconsin law. The court looked to the charter school contract to determine that the charter school had the authority to contract with the district for transportation, but was not entitled to it. The court also dismissed the school's argument that it was like a private school, and should be entitled to transportation as were other private schools under Wisconsin law. Finally, the court determined that the district's decision not to transport was rational because all Wisconsin school districts excluded charter schools from their busing schemes because of the unique and additional costs that the districts would incur.

Peggy Burns is Staff Counsel with Adams 12 Five Star Schools in Thornton, Colo. She is also editor of Legal Routes and co-author of School Bus Stops: A Safety Guide for Transporters. She may be contacted at 720/972-4004 or myroadmap@legalroutes.com.

* This article first appeared in the January 2006 edition of School Transportation News. All rights reserved.