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STUDENT ISSUES To and from school: Courts explore duty. When students are injured – or worse – when
walking to or from the bus stop, the tragedy is felt by all involved regardless of who is at fault. With respect to liability, two school districts got good news from their state courts regarding their duty to students before and after boarding the bus. A bus contractor was not as fortunate. In Francis v. School Board of Palm Beach County (FL), an unidentified school district em-
ployee responded to a middle school student’s concerns about “problems on the bus” by recommending a new bus stop, which also required the student to cross the road. She was struck and killed by an automobile while walking to her new stop. Mindful of the state’s governmental immunity statute, the court limited the existence of a legal duty to “fix” or at least to warn about potential dangers that the district is aware of but that another person may not recognize. Florida statute protects a school district from liability when it does not have “custody or control over students” – for example, en route to the bus stop. In Surgens v. Attleboro Public Schools (MA), a contractor-employed driver discharged a
youngster into her older sister’s care at an undesignated stop a half mile and across the street from the usual bus stop. Te bus arrived early, and no one had been at the stop to meet the girl. When her older sister arrived, she saw the bus and went to meet it. Te younger girl was severely injured when she suddenly ran into the street alone. Although the school principal had allegedly directed the driver regarding the discharge, the case against the principal and district was dismissed because the statutory immunity of the principal and the indemnity clause in the contract between the company and the city. Te case against the contractor will continue because of that indemnity clause. Student is still homeless despite living with relatives. Under the McKinney-Vento Act,
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an LEA must continue the education of a homeless child with disabilities in the school of origin, considered to be in the student’s best interest, for the duration of homelessness, unless the child’s parent or guardian chooses enrollment in the attendance area of the student’s temporary housing. In L.R. v. Steelton-Highspire School District (PA), a house fire forced a student and his grandmother to live with relatives about 10 miles from the school of origin. His enrollment – and transportation – continued at his school from January, when the move occurred, to June of 2009. At the start of the next school year, the district refused to enroll him, having concluded that he was no longer homeless. Te boy missed more than five months of school as a result. A federal court decided that McKinney-Vento “makes it clear that there is no maximum
duration of homelessness,” and found the district’s decision to be “arbitrary” and the result of “mishandling of this matter.” Te court was especially critical of the district’s denial of enrollment to L.R. “without assessment or explanation, and without apprising the family of its rights under the Act.”
NCST AND THE ADA A look at 2010 “In the Rearview Mirror” would not be complete without mention of
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the 15th National Congress on School Transportation (NCST). While some states do not adopt the manual in whole or in part, there is a strong argument to be made that its provisions represent the “standard of the industry.” In a legal battle, a school district should be aware of the publication’s provisions, and be prepared to articulate a reason- able basis for departure from an NCST recommendation. Be aware, too, of July 2010 amendments to the ADA that impact school districts, espe-
cially the clarification of the definition of “service animals” and the parameters for their presence in the school environment. Te new regulations can be found at 25 CFR 35.136 ff. A Section 504 or IEP team must, however, still consider if an animal that does not qual- ify as a service animal is necessary for the provision of FAPE for a child with a disability. n
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Burns is an attorney, consultant and owner of Education Compliance Group, Inc. Her new book with Lisa J. Hudson, “Defensible Decisions about Transporting Students with Special Needs: Lessons Learned from Legal Disputes,” is available for $75 + $9.95 s&h. Visit
www.educationcompliancegroup.com, call (888) 604-6141 or e-mail
ecginc@qwestoffice.net.
64 School Transportation News Magazine March 2011
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