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In the Rearview Mirror: 2011, a Legal Year in Review

By Peggy A. Burns, Esq. Our annual compilation of the year’s important legal developments includes five topic areas of


CONSTITUTIONAL RIGHTS. In Santiago v. Commonwealth of Puerto Rico (1st Cir., Aug. 24), a bus driver employed by a

school bus company sexually abused a 6-year-old boy with a disability. Te role of a court is to determine liability, as opposed to just whether the incident described actually happened, or even if the defendant “did” what the plaintiff claimed was “done.” Here, the federal 1st Circuit Court of Appeals held that school transportation is not “a traditional public function” that morphs a private company into a “state actor” that can be sued in the serious kind of lawsuit known as a “Section 1983” suit. A plaintiff who wins such a suit is entitled to money damages and reimbursement of attorney’s fees — that kind of vulnerability could represent an enormous threat to a private contractor’s bank account. Instead, the Court held that, whether the student involved is a non-disabled student or is a

student with a disability who is provided transportation as a related service, a bus company is not legally responsible for acts of its employees that violate a student’s constitutional rights, like sexual molestation. Public school districts, which are state actors, can be liable for such claims under Section 1983. Santiago represents an important practical consideration. Without regard to other decision-

making criteria, hiring a qualified and responsible bus contractor can be a liability-shifting device for a school district. And, because a contractor is not a governmental entity, the contractor will sometimes escape liability when a case is brought on the basis of particular legal theories that rest on ’state action.’

2. FAILURE TO SHARE INFORMATION CAN BE ‘CONSCIENCE SHOCKING.’ Even though the North Pocono School District knew that 12-year-old I. R. suffered from a rare

and debilitating condition that made him highly susceptible to injury, the district did not notify its bus contractor. Among the company’s transportation obligations was the duty to conduct state- mandated bus evacuation drills. “During the drill, students were instructed to exit through the rear door of the bus, which required them to jump approximately 3 to 4 feet.” With no information to suggest that I.R. should not participate in the drill — and, in fact, the school district had not discussed the boy’s participation in emergency drills with his parents — the company’s driver, a substitute, had I.R. take part in the drill. Te boy suffered injuries including fractures, which required surgery. I.R.’s parents sued the district (I.R. V. Forrest Marshall Peirce, et al., January 5; claims against the

substitute bus driver and the company have either not yet been considered by a court, or any decisions have not been made public). Te judge let the case go forward, noting that if the plaintiffs prove their assertions at trial, the district exhibited “egregious administrative oversight in utter disregard of I.R.’s perilous conditions,” and called the district’s failure to educate the company about the student’s medical condition “conscience shocking.” School districts need to balance issues related to student safety, and those that implicate

privacy. Where a student’s well-being depends upon sharing student information with authorized individuals, district policies should support such disclosure, and be implemented by administrators. When the answer to the question “What might well happen if transportation professionals don’t know about this condition” is that harm to the student is very likely, steps must be taken to share functional information about how to prevent such harm.

44 School Transportation News Magazine January 2012

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