ANALYSIS Part two of this year’s “In the Rearview Mirror” focuses on student-based issues in
In the Rearview Mirror:
2009 in Review, Part II
By Peggy A. Burns, Esq.
court and agency decisions throughout the year. Note, also, important changes to FERPA and Section 504. FERPA regulations now clarify that contractors are entitled to student information — without parental permission — when that information is necessary for the contractor to fulfill its responsibilities to provide safe, appropriate transportation. Mandatory annual FERPA notifications must advise parents that bus contractors are school officials who may have such information without prior permission when they have a legitimate educational interest. Under IDEA, those who transport students with disabilities must receive training in the use and misuse of such information. Additional information about changes to the FERPA regulations is available on the resources page at
www.educationcompliancegroup.com. Section 504 will be interpreted more broadly now, in conjunction with the 2008
amendments to the Americans with Disabilities Act, effective on Jan. 1, 2009. See the August 2009 issue of STN for my article on changes to Section 504.
STUDENT-TO-STUDENT SEXUAL HARASSMENT In Fitzgerald v. Barnstable School Committee (U.S. Supreme Court, January 2009;
March 2009), the U.S. Supreme Court decided that the judicial system owed more to Jacqueline Fitzgerald after the earlier dismissal of her student-to-student sexual harass- ment case brought under Title IX. In 2009, the Court agreed with the Fitzgerald family that the case of the then-kindergartner alleging she’d been forced to lift her skirt, pull down her underpants, and spread her legs while other bus riders watched, should be sent back to the trial court for further hearings. Te unresolved issues included the qual- ity of the district’s investigation of the matter, and their handling of the girl’s complaint. But a $150,000 settlement reached by the parties on June 18, 2009, has ended the
case. For school transporters and educators, this result suggests renewed focus on the steps to take when a student reports peer sexual harassment, but it leaves us without the additional guidance about those steps that might have come from another decision in the Fitzgerald case. See the
www.educationcompliancegroup.com, “Point of Law” page to download “Invincible Investigations — Student-to-Student Sexual Harassment.” Te Ohio Supreme Court found in the district’s favor on the basis of governmental
immunity in Doe v. Marlington Local School Dist. Bd. of Edn. (March 2009). A driver had failed to take action to prevent a student-to-student sexual assault, although the driver was aware students were moving around on the floor. Te driver thought they were “play- ing tag.” Te court found that supervision of students is not part of “operation of the bus” for purposes of waiving governmental immunity. Te dissent expressed frustration that “as long as the driver maintains an assured clear distance from other drivers, a school board faces no liability for what happens inside. It turns out that the school bus driver’s cargo is no more precious than that of the garbage truck driver. Just don’t crash the bus.”
SPECIAL EDUCATION Lopez v. Metropolitan Government of Nashville and Davidson County (Tenn., August
2009) is testament to the fact that educational entities and transportation professionals must design appropriate programs for students with disabilities that take into account all the information available to them about those students. Gilberto, a 9-year-old stu- dent with special needs, was placed on a bus with only four other students, after he suffered persistent harassment on the regular school bus. Although Gilberto’s mother had specifically requested a monitor, none was assigned. Kolby, a 19-year-old student with an extensive sexually-aggressive history known to the district — but not to the special needs transportation coordinator — was a student on Gilberto’s new bus. Kol- by’s mother had requested that he never be on a bus with younger students because of his uncontrollable behavior. An uninformed substitute driver drove on a day that, according to her report, “something inappropriate may have happened.” She had ob- served behaviors clearly indicative of a sexual assault by Kolby on Gilberto, but took no action other than to file the report at the end of her route. Te court held that a
38 School Transportation News Magazine February 2010
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