3. THIN LINE BETWEEN BULLYING AND HARASSMENT CAUSES CONCERN FOR COURTS AND RESEARCHERS. In the first nationally representative survey in a decade of


students in grades 7-12, the American Association of University Women found that 48 percent of nearly 2,000 students surveyed had experienced verbal, physical or online sexual harassment at school during the 2010-2011 school year. Although, as reported in Education Week on Nov. 9, “Te distinctions between teasing, bullying and sexual harassment are becoming more critical as the U.S. Department of Education’s Office for Civil Rights focuses more on school harassment data,” recent cases reflect a blurring of the line between bullying — increasingly prohibited by states’ statutes — and harassment, where turning a blind eye is clearly prohibited by federal law. When a student with special needs is the victim, state and


federal law can come together in significant ways. New York and Pennsylvania cases decided this year echo opinions in the 9th, 3rd, and 7th Circuits that deliberate indifference by school administrators to bullying of a student with special needs is a denial of FAPE. (T.K. v. New York City Department of Education, April 25, and Southmoreland School District, June 18). One aspect of


the New York case (allowed to proceed


against the school district) that is notable is the reminder that extreme social isolation and ostracism is a form of bullying and/ or harassment. A reminder from the Pennsylvania case — in which the district was successful against parents’ claims of denial of FAPE — is that appropriate response by a district to each reported incident, including investigation of an incident of which it becomes aware, and effective follow through where indicated, will avoid liability for the district. A recent Florida case (Hillsborough County School District,


Aug. 19) is a reminder that a district will be in non-compliance with federal law when it is has not designated and identified a trained Title IX coordinator who is responsible for coordination of well-communicated policies, widely distributed procedures that explain the complaint process, and conducting appropriate investigations. Finally, at least two reported cases alleging racial harassment


on the school bus are reason to understand that thin though important line between bullying and harassment. Te New York Court of Appeals agreed in November to hear the Ithaca City School District’s appeal of a lower court’s decision that the district failed to adequately address racial harassment against Epi Kearney. Te conduct took place on a school bus characterized by the


school’s vice principal as a “hell hole” that typified the “racial tidal wave” at Epi’s school that year. Te $250,000 judgment against the school district stemmed, in part, from the district’s imposition of only short-term suspensions on the student


perpetrators. Moreover, such discipline followed allegedly inadequate investigation into bus incidents that were typical of the racially tense environment that existed. And a Michigan case involving Cassopolis Public Schools resulted in an August resolution agreement to conclude an investigation by the OCR into allegations of racial harassment on the school bus. Te incidents included derogatory name-calling, hitting, throwing objects, racial slurs and spitting, all allegedly reported to the transportation supervisor.


4. THE YEAR’S EMPLOYMENT-RELATED CASES AROSE IN A VARIETY OF CONTEXTS.


School transportation professionals must be alert to “red


flags,” and know basic steps to take to strengthen the likelihood of success in defending against formal employee complaints. 2011 litigation involving the Family Medical Leave Act and


assertions of workplace discrimination are reminders of the importance of documentation, investigation of grievances, and provision of fair procedures when your district or company is the defendant in a case or administrative hearing. As in past years, representative cases involve excessive absenteeism or on- going performance issues that, after a period of tolerance by the employer, simply become too much, too often. In a 2009 Michigan case (Moran v. Redford Union School District)


reported only last year, a part-time driver sued a school district that terminated her for too-frequent absences. Te court found that the district properly investigated and made a “reasonably informed and considered decision” before firing her. Moran’s suit asserted that the action violated the FMLA’s “return to work” provision. Te ability to articulate the basis for a legitimate, non- discriminatory decision is the key to legal success for a district in such litigation. In an Ohio case (Santino v. Columbus Public Schools, June 24),


a bus driver of Iranian origin asserted that his termination was based on national origin discrimination, despite evidence that his performance had become problematic. Te employee had kept a journal of co-workers’ slurs; the district had kept a log of the employee’s concerns. Te district prevailed because the evidence demonstrated a lack of severe and pervasive behavior by the co- workers, and included substantial documentation by the district of the legitimate basis for the driver’s termination. A Tennessee case decided in June (Barlar v. Marshall County


Board of Education) asserted that a school bus driver’s former district refused to accommodate his kidney condition in violation of the Americans with Disabilities Act. Te driver testified that he asked his supervisor to assign him to a shorter bus route — his route was admittedly relatively long — because his condition created the frequent and urgent need to urinate. Te case was allowed to proceed because of lack of solid evidence as to whether accommodation requests were made.


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