In this installment of my 2003 year end review of pertinent cases affecting students with disabilities, I'll focus on cases that directly impact students.

Students with Disabilities

Transition programs. Despite district policy that transportation would not be provided to students who chose vocational offerings, a district was required to transport a 17-year-old disabled student to a cosmetology course. The course was directly related to her transition plan employment goal, and therefore a part of FAPE for this student. Rochelle Township High School District , (39 IDELR 58, IL, 3/28/03 ).

Choice of Transporter. Parents complained when a district changed carriers, alleging that their autistic child required consistency. The original transporter went out of business, and despite satisfactory performance of an interim carrier, a third transporter won the bid under public bidding laws. Where circumstances developed beyond the school district's control, the IEP recommendation for consistency could not become mandatory. The parents could not control their child's transportation service where law provides otherwise. South Orange-Maplewood BOE, (39 IDELR 256, NJ, 6/5/03 ).

Planning for field trips. A student's parent complained to the Office for Civil Rights that a Texas school district had failed to provide her son with accessible transportation for field trips.

The student had participated in nine field trips during the 2002-2003 school year, and received "specialized accessible transportation" for eight of them. In fact, the district had purchased a portable car seat that could be used on a regular education bus to promote the least restrictive environment. On the one day for which special transportation was not provided, there had been a "scheduling mix-up" with the special education bus. OCR found no violation of the student's rights. V ernon (TX) Independent School District , (39 IDELR 136, 3/31/03 ).

Transportation for a disabled parent? The disabled parent of a child with disabilities alleged discrimination because the district failed to transport her to IEP meetings. Her son was in an out-of-district facility approximately an hour away, and her disability involved a tendency to fall asleep behind the wheel. The district had offered teleconferencing, which mom refused. She also refused an offer for reimbursement for costs associated with her obtaining transportation to the meeting.

OCR found that where several measures had been offered to accommodate her disability, the district had not discriminated against her. Wachusett (MA) Regional School District , (39 IDELR 131, 3/7/03 ).

Sexual Harassment. A 17-year-old disabled male classmate "touched . . . the behind" of Amber, a disabled student, while both were traveling on a school bus. Amber's mother reported the incident to the school. The student admitted that the incident occurred. The A.P. discussed the seriousness of the matter with the boy's mother, and she agreed to a three-day suspension from school. Upon the boy's return, he received counseling. The A.P. transferred the boy out of the one class that he shared with Amber. He was supervised by a teacher's aide while in the hall.

While no further incidents between Amber and the student occurred during that academic year, when an additional incident occurred in school the next year, Amber's parents sued. They claimed that the district's response to the bus incident couldn't have been reasonable because a second incident occurred. The court held that the actions of the school district were so clearly reasonable that no trial was even necessary. Amber Ings-Ray v. School Dist. of Philadelphia, (39 IDELR 34, PA, 4/30/03 ).

In a Chicago case, a mentally ill student was sexually assaulted on a school bus by a boy with a known deviant sexual history. The aggressor was supposed to be supervised whenever he was among other children. The "Plan" was enforced on the school bus by employing an aide to supervise. But on the day of the assault, the attendant called in sick, and there was no attendant on the bus that day. The Illinois Appellate Court has sent the case back to the trial court for further proceedings. Doe v. Chicago Board of Education, (39 IDELR 97, IL, 6/13/03 ).

Schools of choice. A New Jersey court found that state law dictates who pays for special needs transportation in inter-district choice cases. Here, the court concluded that the parents' district must pay.

The court noted that it was unlikely that a district which neither provides educational services nor exerts any influence over the choice of placement would be the reasonable choice of the legislature to bear the cost. The court was also reluctant to conclude that the lawmakers intended to burden the district where a group home is located where such burden "could only make more difficult the obtaining of satisfactory locations for group homes." Board of Education of West Windsor-Plainsboro Regional School Dist. v. Board of Education of the Township of Delran, (39 IDELR 128, NJ, 7/1/03).

Day care. Sarah Fick suffers from epileptic seizures, and received transportation as a related service. The District refused her mother's request to change her designated drop-off address to an after-school day care center outside the boundaries of Sarah's cluster cite. The District allowed both regular and special education youngsters who are eligible for transportation to designate one pick-up address before school and one drop-off address after school. "The addresses do not have to be the same, but both must be located within the child's cluster boundaries. The district will, however, transport a disabled child outside her designated cluster site when the transportation is necessary for the child to benefit from her IEP."

The 8 th Circuit noted that the "a school district may apply a facially neutral transportation policy to a disabled child without violating the law when the request for a deviation from the policy is not based on the child's educational needs, but on the parents' convenience or preference." Fick v. Sioux Falls School District 49-5, (39 IDELR 151, 8 th Cir., 7/23/03 ).

Cases applicable to all students.

Racial Harassment. Parents asserted that a 6 th grade, Caucasian male student assaulted their daughter and subjected her to racial slurs at the bus stop. The principal investigated the assertions, counseled the offending students, and barred one of them from riding the bus. Because the incident involved threats of physical harm, the district assigned a Para educator to monitor the bus stop before and after school.

The incidents did not reoccur during the remainder of the school year. OCR found the district took prompt and appropriate action in response to the school bus stop incident and closed the case. Hoquiam (WA) School District No. 28 , (103 LRP 24072, WA, March 18, 2003 ).

Discontinuing transportation. An Iowa school district was challenged when it discontinued transportation to elementary students living in a mobile home park approximately one mile from their school. In Sioux City Community School District v. Iowa DOE , 2003 Iowa Sup., LEXIS 65, April, 2003, the court upheld the school district's decision to discontinue school transportation despite complaints that the pathway students would have to take to school was unsafe.

A Safety Committee formed by the school made visual inspections, examined traffic volume and patterns, and discussed the matter with various experts. They considered options to increase student safety, short of providing transportation. The Superintendent also considered the number and age of students who would use the route, and found that "the concerns based upon the age of the students are no different from the concerns a parent would have for any young child who walks to school unescorted." The school board voted unanimously in support of the Superintendent's conclusions that the road was safe.

In finding in the school district's favor, the court noted that the district "carefully balanced competing considerations."

__________________________________
Peggy Burns is in-house counsel to Adams Twelve Five Star Schools in Colorado. She is also the editor of Legal Routes , and the author of the video program Confidential Records: Training for School Bus Drivers . For ordering information, call her at 888/604-6141.

* This article first appeared in the February 2004 edition of School Transportation News. All rights reserved.