Last month, Burns discussed legal matters related to employment, non-student injury, student discipline, and establishment of bus routes. This segment of "In the Rear View Mirror" focuses on special needs transportation and student injuries that occurred last year.

Special Needs Transportation

Palymyra Boro Township BOE (New Jersey Educational Agency) 40 IDELR 197 (Jan. 21)

Parents of a child in a preschool disabled class claimed that the district was wrong to deny transportation. Where the district does not provide transportation to any students, and the parent's request was merely a reflection of her own convenience and personal family needs, the administrative law judge ("ALJ") upheld the district's position.

Ritchart v. Indianapolis Public Schools, (Ind. App.) 812 N.E.2d 189 (July 23)

The school district delivered Joshua, a blind, non-verbal student who suffered from multiple other disabilities, to the wrong address. The driver received information from dispatch as to the "correct" address. Finding no one, home, the bus attendant left Joshua with a neighbor who volunteered to take care of him. His mother, who was awaiting his arrival at home, filed suit against the district for negligent infliction of emotional distress. The district prevailed because Joshua's mother failed to meet the state law test for liability. The boy was not injured, and his mother did not witness any part of the incident giving rise to the complaint.

Scarborough School Department (Maine State Educational Agency), 104 LRP 25305 (April 29)

Where student was mainstreamed academically during most of the school day, and was on a "regular" bus to and from his father's home, it was not a violation of his right to a least restrictive environment ("LRE") to have him ride a "special needs bus" from school to his mother's house. The boy, whose parents shared custody, alternated weekly between his parents' homes. He needed supervision after discharge, and neither his mother nor an assigned volunteer could always be present at the bus stop. Assigning him to the special needs bus, for what amounted to 25% of his ride time, was reasonable in light of the inconvenience to the school district and other students if the "regular" bus driver had to call for instructions whenever an adult was not present at the bus stop.

North East Independent School District (Texas State Educational Agency) 104 LRP 30667 (April 23)

In applying the LRE test to school bus considerations, safety should be the primary consideration. The primary purpose of transportation is not education, except in individual cases where there are transportation goals included on the IEP. Rather, where there are no goals, school transportation must simply emphasize safety.

Coolidge v. Riegle (Ohio App.) 40 IDELR 181 (Jan. 29)

Although not school transportation-related, this case bears noting because it involves a teacher's suit against parents of second-grader with autism. The teacher suffered injuries when the student kicked her, and sued the parents for insisting that the student be placed in a mainstream classroom environment. The court found that the boy's problems with hitting and kicking were well-known, and that the case must go to trial on the issue of whether the injury to the teacher was foreseeable.

Shore Regional High School Board of Education v. P.S. (U.S. Court of Appeals, 3rd Circuit) 41 IDELR 234 (Aug. 20)

A student with special needs had been so victimized by on-going harassment and bullying, including on the school bus, that he could not be educated at a high school in the same district in which he attended elementary and middle school. The court granted the parents' request that he change school districts, finding that the original district had failed to provide a free appropriate public education.

Student injuries

Jackson Public School District v. Smith, 2004 Miss. App. LEXIS 598, (June 22)

A parent of an eight-year old student sued the district when her child was struck by a school bus on her way to school. The boy's mother released him from her van just as the bus was turning toward the school. The school district appealed from the Circuit Court's determination that mother did not share in the fault for her child's injuries. However, the court granted the district's request to reduce the award of $850,000, and awarded, instead, $400,000. The district was liable based on the driver's negligence, and on the negligent hiring, training and retention of the driver.

Valerie Duhon Dominque v. Lafayette Parish School Board, 2004 La. App. LEXIS 1490 (June 16)

A middle school child chose to walk home rather than take the school bus. He ran into a 4-lane highway, where he was struck by a truck. His mother asserted that the district had failed to supervise him, as evidenced by its failure to assure that he rode the bus. The court found that nothing "short of an impossible system" would have changed the outcome, and held that the district did not breach its duty to ensure the orderly and non-violent flow of children to the appropriate area of departure.

Herring v. Liner, (North Carolina) 594 S.E.2d 117 (April 6)

An 8-year old student was violent attacked and beaten by 3 male students who had been riding the school bus with her. The assistant principal (Liner) changed her bus stop. In the course of crossing the street to the new stop, the student was hit by a car. The court held that Liner's changing the bus stop did not amount to "supervision" of an activity, and that, therefore, Liner's immunity under the state's law was intact.

Summers v. Cambridge Joint School District No. 432 (Idaho, 2004) 88 P. 3d 772

A school district was not liable for injury to a student who entered a highway after the bus had departed. The driver did not breach his duty to leave the children in a safe place. Rather, it was not foreseeable that the student who go into the highway to retrieve Easter grass which blew out of his basket.

Indiana Insurance Company v. Auto-Owners Insurance Company, 2004 Mich. App. LEXIS 509 (Feb. 19)

A Michigan transportation director accepted a note purporting to be from a father asking that his students be dropped off at a different stop to be picked up by a baby-sitter. The director did not make contact with the school, despite the fact that the district's policy required that such notes be submitted to the school principal. When the girls refused to disembark, the driver brought them back to the bus terminal. The note's author (who was really one of three kidnappers) called when the girls were not at the "authorized" bus stop. The driver brought them to a different stop designated by the kidnapper. Once there, the kidnapper boarded the bus and removed the students, who were clearly upset. The students were found in Florida three days later. The case involves dispute between the insurers involved as to which policy covered the school district.

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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 March 2005 edition of School Transportation News. All rights reserved.