By Peggy A. Burns, Esq.

Generally, transportation must be provided to students with disabilities only to the same extent it is provided to students without disabilities. But if transportation is a related service for a particular disabled child, the school district must provide that transportation regardless of the level of services provided to other students.

In Malehorn v. Hill City School District, the U.S. District Court in South Dakota has asked and answered the question, "When is transportation a related service?" The context for the court's decision is an interesting and recurring fact situation: what is the effect of the student's move from another district?

Prior to moving to Hill City, South Dakota, Laura Beth Malehorn was receiving door-to-door transportation pursuant to her Individualized Education Program (IEP). After her move, the Superintendent of the Hill City School District said that the district did not have any special transportation, and that, therefore, that portion of her IEP would not be implemented. Instead, Mrs. Malehorn had to drive Laura Beth to a school bus stop approximately 8.5 miles from home, where a school bus transported the children the last five miles to school.

When Hill City developed a new IEP, the IEP committee determined that transportation was not a related service for Laura Beth. At the ensuing due process hearing, the hearing officer concurred. The Malehorns sued.

The court's analysis began with consideration of what transportation services, if any, the school district provided to the general student population. Hill City students in Laura Beth's vicinity did receive transportation, but had to get to the same bus stop which was 8.5 miles from Laura Beth's home. Since Laura Beth was requesting something not provided to the general student population - door-to-door transportation - the court had to analyze her situation individually.

The court used the factors developed by the Eleventh Circuit last fall in Donald B. v. Board of School Commissioners of Mobile County, Alabama (see STN October, 1997) to determine whether transportation was a related service. The court considered Laura Beth's age; the distance to be traveled; the nature of the area she would pass through; access to public assistance; and, availability of other forms of public assistance en route.

The court acknowledged that Laura Beth had to travel 13.5 miles each way far longer than the three blocks Donald B. had to travel - but said that "balancing the other factors, this court finds that the distance that Laura Beth must travel does not tip the scales in her favor." The court did indicate that the Malehorns had not presented any evidence to demonstrate that the considerable distance was, in fact, greater than other students had to travel. Perhaps the court would have weighed the distance factor more heavily if there had been such evidence presented. The court rejected evidence as to the inconvenience to Mrs. Malehorn.

The Director of Special Education and Laura Beth's resource teacher both testified that Laura Beth could follow directions not to walk out in front of a car. In considering whether a student can handle walking to and from, or waiting at, a bus stop, his ability to appreciate danger, and the likelihood that he will act appropriately in the face of dangerous circumstances, will be important.

But what about the fact that Laura Beth had been receiving door-to-door transportation as a related service in her previous district? When Laura Beth moved to Hill City, the district was obligated, under the circumstances, either to implement the IEP from her previous district, or develop a new IEP. A word to the wise: do one or the other promptly. Since Hill City did not institute a new IEP until eight months after the family's move, the court awarded the Malehorns the full costs of transportation from Laura Beth's home to school, from the date of her enrollment in the new district, to the date of the new IEP. But note that the previous district's inclusion of transportation as a related service did not bind the Hill City School District.

This article is adapted from "Special Needs Transportation Law: 1997 in Review," a new special report by Peggy Burns. It is available by sending your name, mailing address, and $19.50 (which includes shipping & handling) to Education Compliance Press, P.O. Box 221, Lafayette, CO 80026. Peggy Burns is staff counsel for Adams Twelve Five Star Schools in Northglenn, CO, and can be reached at (303-604-6142).

Source: Article reprinted from School Transportation News, Mar. 1998, pg. 21. All rights reserved.