By Peggy A. Burns, Esq.

In the second part of her 1998 year-end review, writer and school attorney Peggy Burns discusses seven court ruling that can affect pupil transportation operations. From state sovereign immunity to routing, from drug testing for mechanics to advertising on buses, Burns highlights legal developments of importance. Reprinted from School Transportation News, January 1999, pg.7, all rights reserved.

School Bus Accidents
When will state sovereign immunity statutes apply?

State sovereign immunity statutes immunize school districts against most accidents based on negligence. Often, the immunity will not apply to the actual operation of the school bus. It may apply, however, to decisions made by a district concerning selection and training of drivers. It may even apply where the action at issue was related to students' getting into or leaving the vehicle. (Note: When the school district is immune from liability, a lawsuit is usually quickly dismissed.) White v. School District of Philadelphia, 1998 WL 672890, (Sup. Ct. of Pa.), and, Griner v. Minister Bd. Educ., 1998 WL 334374 (Ohio App.)

Drug Testing
When can the school district require non-driving mechanics to submit drug tests?

The 10th Circuit Court of Appeals has followed the U.S. Supreme Court's lead in requiring a governmental entity to make a showing that there is "special need" to test an employee for drugs, even absent suspicion that the individual employee is using drugs. First, the testing program must be adopted in response to a documented drug use problem, or be necessary because drug use among the target group would pose a serious danger to the public. Second, the testing scheme must meet the goals of detention and deterrence. Where drug test occur in predictable intervals (for example, when a mechanic obtains or renews a CDL), and the tests are limited in frequency (for example, every four years), the court found the City of Albuquerque could not engage in suspicionless drug testing. Solid Waste Dept. Mechanics v. City of Albuquerque, Docket 96-2177, 9/22/98.

Can you administer a drug test because the employee might be transferred to a safety sensitive position?

A New Mexico court has said no. The city had a policy requiring drug tests for individuals who worked on heavy vehicles. Because the mechanic was a "prime candidate" for a transfer to work on heavy vehicles, the city insisted that he take a drug test. He was fired when the test revealed marijuana in the his urine. The court said the city's actions were unfair, and required reinstatement. Jaramilla v. City of Albuquerque, 1998 WL 244694 (N.M.App.)

Employment Discrimination
Two routes are not created equal.

When a school district reconfigured bus routes, the 140 to 180 mile East Route, for which drivers received premium pay, was discounted. When Ms. Kindred was assigned the new Wildwood route (containing portions of the former route) which was 122 miles, she did not receive premium pay, and claimed discrimination based on gender and age. The 8th Circuit found that the old and new routes did not amount to equal work requiring equal skill, effort and responsibility, performed under similar working conditions.

Moreover, the district's reassignment of Kindred to a route longer than her previous route had been didn't square with her claim that the district believed women could not perform comparably to male bus drivers. Also, another female driver with a longer route did receive premium pay. Kindred v. Northome/Indus. Schl. Dist. No. 363, 154 F.3d 801, (8th Cir.)

Sexual Harassment on the School Bus
Did the school district create a hostile environment?

Michael drew pictures of naked girls while riding on the bus with 3rd grade Jennifer. The principal said that "boys will be boys," but that she would talk to Michael. Six months later on the school bus Michael took a hand drawn picture of a boy and a girl out of Jennifer's backpack and drew genitalia on the picture. Believing Jennifer had drawn the entire picture, the driver issued bus misconduct notices to both students.

When the principal received additional reports of boys n the school bus talking about sex, the principal had the boys ride in the front of the bus, and notified their parents of the inappropriate behavior. She invited Jennifer's mother to inform her of any further concerns or complaints. Despite a number of well-planned interventions, other school bus incidents occurred.

The 9th Circuit Court of Appeals found that there was no evidence from which to suggest that the school district intentionally allowed her to be subjected a sexually hostile environment. (Note: This case has been in the court for 7 years!) Bosley v. Kearney R-I School District, 140 F.d. 776 (8th Cir.)

Management of Student Behavior
Your policies will be taken literally!

A Florida court overturned the school district's expulsion of a student who had bullets o the school bus. The school board had relied on a policy statement against the use of disruptive or dangerous items. Where the student had not used the bullets at all, much less in a dangerous or disruptive way, the court has constrained the reverse expulsion. M.K. v. School Board of Brevard County, 708 So.2d 340, (Fl.App.1998)

Enforcement of policies.

A student who was knifed by another student (Smith) during a fight on the school bus claimed the driver knew that Smith carried the knife and failed to enforce rules against carrying weapons on school property. The court found that the driver's acts or omissions were covered by governmental immunity. The court also noted that there was no evidence which showed that the driver had witnessed Smith with a knife before the attack. The case was dismissed. Payne v. Twiggs County Schl. Dist., 1998 WL 170054 (Ga.App.)

Advertising on the School Bus
Can you choose which advertisement?

The 3rd Circuit Court of Appeals has decided that the Southeastern Pennsylvania Transportation Authority (SEPTA) had created a public forum on its buses by permitting various advertisements. The court further found that SEPTA's removal of anti-abortion posters because of their content did not survive strict scrutiny. Christ's Bride Ministries, Inc. v. Southeastern Pennsylvania Transportation Authority, 3d Circuit.

Peggy Burns in the in-house counsel to Adams Twelve Five Star Schools in Broomfield, Colo. She can be reached at 303/604-6142.