Arkansas Attorney General
on
Non-conforming Vans
[Editor's
note: The following is an opinion from Winston Bryant, Attorney General for the
State of Arkansas, to Arkansas State Representative Michael K. Davis. Rep. Davis
requested the Attorney General to interpret the legality of using a passenger
van that does not comply with all federal motor vehicle school bus safety standards,
in school service. The opinion was issued October 31, 1995. The reference is Opinion
No. 95-290]
Dear
Representative Michael K. Davis: This
is in response to your request for an opinion on two questions relating to the
use of vans to transport public school students to school related activities,
Specifically, you indicate that the Pocahontas School District purchased a passenger
van with the capacity of fifteen to transport students to various activities.
You note that it is your understanding that federal law prohibits dealers from
selling or leasing vehicles with a capacity of more than ten persons intended
for transporting students to and from school or school-related activities, unless
the vehicles comply with the applicable federal school bus safety standards. Your
two questions in this regard are as follows:
1. Can a van designed for carrying fourteen students and one adult driver be legally
used in transporting students to school-related activities?
2.
If a school uses a van to transport students, what liability exposure is placed
on the school board? As
you have noted, federal law prohibits a motor vehicle dealer from selling a van
which seats over ten persons to a school district when the van does not meet federal
school bus specifications. (1) See 49 U.S.C. 30125 and 30112 (Supp. 1995). The
dealer may be subject to a civil penalty for such sale. See 49 U.S.C. 30165 (Supp.
1995). Federal law, however does not provide any sanction for the "use" of such
vans, once purchased by the school district, on the highways of the various states.(2)
This issue, however, may be addressed by state law. Arkansas law gives the State
Board of Education the authority to prescribe uniform rules and regulations governing
the design and specifications of school buses. See A.C.A. 6-19-102(e) and 6-19-111(a).
The State Board of Education has adopted the "Arkansas Department of Education
Specifications Governing School Bus Design" (April 11, 1994). These extensive
regulations apply to all buses which would accommodate more than ten persons.
Section 3.0 1. The regulations state that:
The
following standards address modifications as they pertain to school buses that,
with standard seating arrangement prior to modification would accommodate more
than 10 persons. If by addition of a power lift, mobile seating device positions
or other modifications, the capacity is reduced such that vehicles become multi-purpose
vehicles (MPV's) the intent of these standards is to have these vehicles be required
to meet the same standards they would have had to meet prior to such modifications,
and such MPV's are included in all references to school buses and requirements
for school buses which follow.
The
intent of this regulation to apply to all "school buses" despite their seating
capacity is clear. The term "school bus" is defined in the Arkansas Code at 2749-219(e)
as "every motor vehicle owned by a public or governmental agency and operated
for the transportation of children to or from school or privately owned and operated
for compensation for the transportation of children to or from school." This definition
would not seem to apply to buses used to transport children to and from "school
related activities" as your question suggests. Certainly, however, the federal
specifications do apply to the transport of students to and from school related
activities.
In response to your first question,
therefore, it is not "lawful" to use a van designed for carrying fourteen students
and one adult driver to transport students to school related activities when the
van does not meet all federal specifications for school buses. There does not
appear to be any federal law sanction, however, for the unlawful use of such vans
by a school district. In addition, in light of the Arkansas statutory definition
of a "school bus," it may be argued that the state regulations do not apply to
such vans when used solely to transport students to and from "school related activities"
rather than to and from "school." The potential liability of the school district
and school district employees and board members, however, as discussed in response
to your second question, may be sanction enough to convince the district to forgo
use of such vans.
In response to your second
question, it should be noted initially that school board directors are immune
from tort liability or suit for damages for their official actions, except to
the extent that they may be covered by liability insurance. See A.C.A. 21-9-301
(Cum. Supp. 1993). See also Cousins v. Dennis, 298 Ark. 310, 767 S.W.2d 296 (1989).
Thus, under state law, the extent of any liability insurance, would be the "exposure"
placed on the School Board. It is impossible to rule out, however, a potential
federal cause of action, most likely brought under 42 U.S.C. 1983, under the facts
you have mentioned. Of course, the success of any such suit is not guaranteed,
and would depend upon the particular facts giving rise to the cause of action.
When school directors are sued under this provision, they are entitled only to
"qualified immunity," the test of which turns upon the "objective legal reasonableness
of the action" assessed in light of legal rules that were "clearly established"
at the time the action was taken. See Anderson v. Creighton, 483 U.S. 635 (1987).
Although the applicability of 42 U.S.C. 1983 may depend upon the particular facts,
if applicable, it appears that qualified immunity may not operate to immunize
the action of purchasing a van for school use when "clearly established" federal
law provides that such vans do not meet federal requirements for school buses.
In this situation, therefore, the school board directors may have some liability
exposure under federal law for which no immunity will apply.
The
foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General
Elana C. Wills.
WINSTON BRYANT (sgn.) Attorney General 1.The
Secretary of Transportation is empowered to prescribe motor vehicle safety standards
for school buses and school bus equipment. 49 U.S.C. 30125 (Supp. 1995). The standards
appear in various federal regulations and will not be set out in detail herein.
2.
The federal government's jurisdiction under the commerce clause of the United
States Constitution presumably does not extend to the intrastate use of such vans
by local school districts. |
