By Peggy A. Burns, Esq.

Editor's note: As 1998 winds down, writer and school attorney Peggy Burns takes a retrospective look back at the year. In this first of a two-part series she documents decisions affecting school transporters handed down by the courts in several states nationwide. The cases noted here were selected for their relevance to readers, regardless of what state or jurisdiction the incidents occurred in or where the ruling was issued. They are intended to give readers an insight into the court's approach to the issues that affect the day-to-day operation of school transportation. Reprinted from School Transportation News, December 1998, All rights reserved.

Employment Discrimination
From disabled driver to bus attendant?

When school bus driver Brickers began to experience severe pain which kept her from driving, she requested an accommodation under the Americans with Disabilities Act: a transfer to a bus attendant position. The school district refused the transfer because lifting - which Brickers could not do - was an essential function of a bus attendant's job. The 6th Circuit Court of Appeals found that Ohio state law required that only applicants able to lift be hired as bus attendants. Moreover, the Court found that lifting was otherwise an essential function because the ability to lift would be crucial in an emergency situation, and might easily come into play in transporting disabled students. Consequently, the Court upheld the school district's position. Brickers v. Cleveland Board of Education, 145 F.3d 846, (6th Cir.)

Employee-Student Sexual Harassment
When will a school district be liable for sexual harassment of a student by an employee?

High school student Gebser, had a sexual relationship with one of her teachers. She did not report the relationship to school officials. The U.S. Supreme Court concluded that damages may not be recovered in those circumstances unless an official of the school district with authority to institute corrective measures has actual notice of the teacher's misconduct, but fails to take appropriate steps to address it. It appears that if a school or transportation official does not know of an employee's sexually harassing behavior toward a student, the school district cannot be held liable for such behavior. Even if the school or transportation official has the requisite knowledge, so long as the school district takes steps considered adequate to end that harassment, the school district will not be liable. Gebser v. Lago Vista Independent School District, 118 S.Ct. 1989.

Employee-Employee Sexual Harassment
When will an employer be liable for sexual harassment of an employee by a supervisor?

The U.S. Supreme Court has issued new guidance in the area of employee-employee sexual harassment. Lifeguard Faragher complained that her immediate supervisors subjected her and other female lifeguards to "uninvited and offensive touching" and offensive and lewd remarks.

In a companion case, employee Ellerth alleged that she had been subjected to constant sexual harassment by one of her supervisors, Slowik. Slowik had authority to hire and promote employees. Ellerth claimed that several of Slowik's comments amounted to threats to deny her a promotion, and to otherwise affect her job in negative ways. Ellerth never informed anyone in authority about Slowik's conduct, and, by the time Ellerth finally quit, Slowik had not actually followed through on any of his alleged threats.

The High Court said that when a supervisor 's sexual harassment of an employee results in a tangible employment action, the employer will always be liable, regardless of whether high level management knew of the harassment. But, when sexual harassment by a supervisor does not result in a negative employment action, the employer may have a defense. If the employer has published effective anti-harassment policies, and the employee doesn't use internal grievance procedures, the employer may not be liable. Faragher v. City of Boca Raton, 118 S. Ct. 2275 and Burlington Industries v. Ellerth, 118 S. Ct. 2257

Special Needs Transportation
What are the hot topics in special needs transportation?

Length of ride continues to be an issue, especially in connection with parental choice of schools. Where the parent chose the school, knowing where it was located, and that the travel time could be lengthy, an applicable regulation limiting the amount of travel time to 60 minutes each way did not apply. North Reading Pub.Schls., 28 IDELR 403, Mass. Parents are not entitled to reimbursement for transportation to a unilateral placement in a private school where they selected the placement despite the fact that the district's IEP was appropriate. Atascadeo Unified Sch. Dist., 27 IDELR 1163, CA.

On the other hand, where parents unilaterally placed their child in private school because his Section 504 plan was inappropriate, the parents were entitled to reimbursement for transportation costs.. Borough of Palmyra Bd. Of Educ. v . F.C., 28 IDELR 12, N.J. If parents reasonably determine that school-provided transportation is unsafe, they may receive reimbursement for transporting the student themselves. Amherst Public Schools, 28 IDELR 585, Mass. The "new" IDEA stresses development of behavior management plans for students whose behavior will disrupt school or endangers others. Where a student flopped, screamed and refused to get on the bus, the IEP should have contained a goal addressing transportation behavior. MSAD #28, 27 IDELR 786, Maine.

Peggy Burns is the in-house counsel to Adams Twelve Five Schools in Broomfield, Colo. She can be reached at (303) 604-6142.