Skiing "on the job," child abandonment on the bus, threatening artwork, videos of student behavior and more were among the school bus lawsuits adjudicated last year. In this annual review, school attorney Peggy Burns reviews nine important cases from 2004.

Part 1 of "In the Rearview Mirror" will focus on legal matters related to employment, non-student injury, some cases involving student discipline, and an interesting case concerning establishment of bus routes. In March, Part 2 will focus on special needs transportation and student injuries.

Worker's Comp . Renee Norton v. Deuel School District #19-4 , SD, 1/1/4/04. A South Dakota Court held that a school bus driver's skiing injury did not arise "out of and in the course of her employment" for worker's compensation purposes. The driver drove students to a ski trip, and was given an extra lift ticket. The court rejected the driver's claim that she was hurt while supervising the students, since this wasn't a duty she was expected to perform in the normal course of her job.

Gender-Based Discrimination . Shellee Dykstra v. First Student, Inc. , ME, 4/30/04 . A female driver who was not selected to be dispatcher, resigned and sued her company, alleging she had been the victim of unfair employment decisions based on gender. The court found that a change in her pay structure to hourly actually benefited her because she earned overtime. She was not unfairly passed over for promotion because, unlike the man selected, she had no experience as dispatcher. Finally, a supervisor's remarks were not so severe as to interfere with her employment, so did not create a hostile environment. The court did send to the jury her claim that she was paid less than a man for the same work.

Driver Termination . Napier v. Centerville City Schools , OH, 6/10/04 . A driver's termination was justified when she left a kindergartner on the bus after returning from her morning routes. The bus videotape showed that the temperature on the bus reached 122 degrees. The driver argued that the student had not been hurt, and that the employee hand book required application of progressive discipline. Moreover, she asserted that her long employment history with the district warranted lesser discipline. The court found that, despite the handbook, Napier was an at will employee. In addition, her 26-year tenure simply meant she should have known better than to exit the bus without physical inspection.

Retaliation. Beam v. Bauer , 3 rd Cir., 2/18/04 . A Pennsylvania driver/contractor alleged her mileage was cut by a district in retaliation for a lawsuit. The suit claimed that the independent unit's ("IU") new policy of preferring contractors that provided wheel-chair accessible transportation, disadvantaged small contractors. The IU compensated contractors with wheelchair accessible vans at a higher rate. The court found the IU's policy was related to a legitimate purpose and imposed sanctions on the driver for filing a second lawsuit on the same subject while the first one was pending.

Defamation - Safety Guidelines. North Carolina Motor Coach Association v. the North Carolina State Board of Education , 4 th Cir. State guidelines for hiring contractors, developed by a multi-agency task force, were constitutional because they were not mandated. The court also held that the State Director of Transportation had not defamed the Motorcoach Association in a newspaper article following a charter bus crash. The article compared only generally safety standards of motor coaches and school buses.

Injury to Bystander. Kohn v. Laidlaw Transit, Inc. , IL, 4/4/04 . Bystanders attacked a citizen (Kohn) whose car accidentally hit a student, when he tried to help the child. Kohn sued the bus company for the injuries he suffered from the beating. He alleged that the collision had resulted from the driver's failure to activate the mechanical arm and stop sign on the bus. The testimony of the parties differed as to the driver's role in the beating. The court noted that the school bus driver would not generally owe a duty of care to the citizen in this situation unless his injury was foreseeable. Where the driver had no reason to expect Kohn to be attacked by an angry mob following an accident involving the bus, the driver, and therefore the company, would not be liable for Kohn's injuries.

Student discipline. Porter v. Ascension Parish School Board et al. , LA, 1/28/04 . A school bus driver reported that student's artwork depicted the school being torched, students holding guns, and another student throwing a brick at the school principal while cursing at him. The court determined that the picture represented a "true threat," and the student should be expelled.

Bus Videos . WFTV, Inc. v. School Board of Seminole County , Fl, 5/14/04 . Under Florida state law, bus videos depicting student behavior were confidential records and could not be provided to a television station even if they were "redacted" to exclude personally identifiable information. The Florida law is more restrictive than the federal FERPA which prohibits only the release of personally identifiable information in education records.

Establishment of bus routes. Labrum v. Wayne County School Board , UT, 5/19/04 . Utah state law required a minimum of ten children for creation of a new bus route or route extension. School districts are permitted to request an exemption from the requirement, but the norm was to offer parents reimbursement for driving their children to an existing bus stop where there were not enough children to create a new stop. Parents sued the district under the Equal Protection Clause of the U.S. Constitution because the district had sought an exemption in some cases, but had determined that, here, reimbursement was significantly more cost-efficient than creating a new route. The court ruled that the district had a rational basis for refusing to seek an exemption, and that it had properly weighed all the evidence.

__________________________________
Peggy Burns is staff counsel to Adams 12 Five Star Schools in Colorado. She is also the editor of Legal Routes. She may be contacted at 720/972-4004, or myroadmap@legalroutes.com.

* This article first appeared in the February 2005 edition of School Transportation News. All rights reserved.