Part 1 (reprinted from the December 2000 issue of School Transportation News)

By Peggy A. Burns, Esq.

Special needs transportation, governmental immunity and bus stop selection were among the legal issues which focused directly on school transportation in the past year. The cases reviewed here are mainly state court cases and hearing officer decisions. While that means they have no binding impact on the courts of other states, nevertheless, they can be extremely instructive as to how a court might consider a particular issue. In this issue we'll review 10 cases that made it to state courts. Next month's STN will have Part II of the annual Year in Review.

Special Needs Transportation
Here is a sampling of the special needs cases decided in 2000. The Office for Civil Rights considered a parent's complaint that students in a district's Moderate Intervention Programs (MIPS) were required to ride a school bus with students with severe behavioral and emotional problems. The complaint alleged that the MIPS students were denied FAPE because of the physical and verbal abuse to which they were subjected. OCR found for the parents because the district "failed to implement strategies to ensure the safety of MIPS students." Metropolitan Nashville - Davidson County School District, (TN) 33 IDELR 135, February 1, 2000.

The Office for Civil Rights found that a school district did not discriminate against students with disabilities where the disabled student's bus ride was longer than that of their non-disabled peers. The extended time was attributable to time-consuming personalized pick-up and delivery services for students needing special attention. Polk City Sch. Dist. (FL), 33 IDELR 137, February 23, 2000.

Parents alleged injury to a special needs student as a result of a school bus driver's smoking as he drove the bus. The Court held that the statutory exception to sovereign immunity for harm which occurs in connection with operation of a motor vehicle did not apply, and the district was immune from liability. Herring v. Dallas County Schools (TX), 32 IDELR 94, April 11, 2000.

Governmental immunity
You'll note that Herring v. Dallas County Schools was decided on the basis of governmental immunity. In fact, governmental, or sovereign, immunity issues figured significantly in a number of this year's cases. Governmental immunity is a theory or defense established by the courts and codified in a state's laws to protect an institution or arm of the state from suit. It also protects the individual employees working to further the purpose of the institution or other agency. The defense may be asserted in cases of injury to a plaintiff. While the particular application of the theory may vary depending upon which state you live in, states' laws typically contain an exception to this special protection provided to school districts, among other governmental agencies, when the injury is caused, as it was in the Texas case above, in connection with operation of a motor vehicle.

Another exception to governmental immunity may exist under state law where the action is "discretionary" - that is, one undertaken for the public good and involving the exercise of judgment. There is, in contrast, no exception where the entity is performing a "ministerial" or "proprietary" function, in which an individual is just carrying out a policy determined by someone else, or otherwise doing something that any private individual or agency could do.

In each of the following cases, the issue was whether the school district or school employee was protected by governmental immunity. When the doctrine applies, the case will be dismissed before a trial on the facts. By the way - it's just coincidence that the student's name in the next case is Herring, just like the plaintiff's name in the Texas case, above.

A school administrator changed Loryn's bus stop in response to a complaint that she had been assaulted by several boys while on a school bus. Approximately 5 months later, she was hit by a car as she crossed a street to reach that bus stop.

The Court found that the plaintiffs' claim of negligent supervision, arising from the administrator's failure to appropriately discipline the student's attackers, was subject to governmental immunity, and therefore dismissed the claim.

The plaintiffs also claimed that the district was negligent in requiring Loryn to cross a very busy street to get to her new bus stop. The Court found that the district's insurance did not provide coverage for the student's injuries, and consequently the district was immune from the lawsuit.

Herring v. Winston-Salem/Forsyth County Bd. of Ed., N. Carolina Ct. of Appeals, May 2, 2000. Can a district's liability in a bus stop selection case be determined by driver action even though the district would otherwise be immune from suit? A school district could be liable for serious injury to a 16-year old student which occurred when she had to cross a set of railroad tracks between her bus stop and home. Although governmental immunity would limit the district's liability for selection of the bus stop, it was not a bar to suit on a claim that the driver had negligently dropped off the student. While bus stop selection was a discretionary function, from which the district was immune, the driver's action was proprietary in nature, and could result in liability. Day v. Middleton-Monroe City Sch. Dist., Ohio App., May 1, 2000.

Under Missouri statute, a driver was not immune from liability despite immunity granted to a school district for a student's injuries. The evidence showed that Jamie was injured when a school bus left the road and rolled over several times before coming to a stop. The statutory cap on damages available to the school district did not apply to limit the damages assessed to the driver. Cole v. Warren County R-III School District, Missouri, June 6, 2000.

Where a preschooler was left unattended on a school bus after it was emptied, the governing board was not liable because of application of governmental immunity. The action was the result of a discretionary function based on the facts in the complaint. Reynolds v. Board of Mental Retardation and Developmental Disabilities, Stark County, Ohio, February 23, 2000.

Bus stop selection
The North Carolina and Ohio governmental immunity cases are bus stop selection cases. Such cases can arise in the context of governmental immunity, or provoke the question of a school district's duty to a student before boarding the bus, or after disembarking. A student was waiting in the driveway of her home for her mother to walk her to the school bus stop. The girl "suddenly and inexplicably" ran into the street and was hit by a car. The parents sued the district, alleging that the location of the bus stop was inherently dangerous. The district proved to the Court's satisfaction that it did not have a duty tot he student at the time of the accident. Moreover, the location of the bus stop, whether dangerous or not, was not a proximate cause of the student's injuries. Hanley v. East Moriches Union Free Schools, NYS Supreme Court, August 22, 2000.

Are parents' constitutional rights involved in bus stop selection cases? Parents appealed from a trial court decision in favor of the school district where they sought to have a bus stop moved. The parents showed no basis on which their claim of violation of due process and equal protection rights could be substantiated. Morningstar v. Mifflin City Schools, Pennsylvania, October, 2000. Can driver action render a bus stop unsafe? An 8-year old was killed when a vehicle accidentally struck her as she crossed a 2-lane road to catch her school bus. The case was allowed to go to trial where there was testimony that the driver instructed students to cross the street and be waiting for the bus when it arrived or be left behind. Additional testimony supported the contention that the driver had, in fact, been known to leave students behind.

Smalls v. South Carolina Dept. of Education. South Carolina, February 22, 2000. And, for other bus stop selection cases, see May and November, 2000 issues of STN.

Peggy Burns is in-house counsel to Adams Twelve Five Star Schools in Colorado. You can reach her at (303) 604-6142, or at edcompli@aol.com.