The need for compliance depends on the existence of a law, regulation, rule, policy—in other words, “the something” with which your actions must conform.
Attorney Julie Weatherly’s TSD Conference sessions on March 21 in Frisco, Texas aptly demonstrated that transporting students with disabilities is fraught with legal standards with which compliance is essential.
The challenge of compliance is created, in part, by the fact that the rules governing special education matters are often “cryptic,” as the U.S. Supreme Court has described the mandate we call FAPE—a Free Appropriate Public Education. If you look at the glass half full, Julie’s sessions helped attendees to understand that “there’s more than one way to skin a cat;” that is, compliance is usually more gray than black and white, and that leads to a variety of opportunities and strategies to consider—good news for a creative transporter.
However, if you must have clear legal standards to prevent anxiety, you might want to re-think your commitment to special needs transportation.
For those who thought the provisions of IDEA is the only law you must understand, Weatherly commented on the resurgence of cases brought under Section 504 of the Rehabilitation Act of 1973. A nondiscrimination law that’s given rise to many administrative agency opinions about leveling the playing field for students with disabilities when compared to their nondisabled peers, Section 504 has been a significant basis on which parents have sought to establish liability for student injury on the school bus and in the school.
While success in an IDEA matter does not entitle a student to money damages, plaintiffs can seek fiscally devastating verdicts under Section 504. Another federal law known as Section 1983 has been used frequently in recent years, where parents of students with disabilities cite numerous reports to school officials about staff abuse and gross negligence towards students. They claim that the school officials failed to initiate an investigation or to take any other protective measures to ensure student safety.
Topics like use of restraint, service animals, the process of IEP meetings, student behavior and discipline are among “today’s” legal issues. Vouchers and choice and declining resources committed to special education and related services will all present compliance challenges in the very near future.
Unlike transportation for the overall student population, public school transportation is not necessarily a “privilege” when addressing the needs of students with disabilities. Instead, transportation may constitute a mandatory “related service” for a student with a disability, and the when, where, how, for how long, what, and by whom associated with this related service presents compliance dilemmas that differ from student to student.
These challenges are compounded both by the frequent exclusion of school transportation professionals from IEP meetings and the equally frequent laissez-faire attitude of educators who write IEPs without doing more than “checking the box” to indicate that a student with a disability must be transported.
And, when compliance requires a case-by-case determination of the transportation strategies that are most appropriate given each child’s disabilities and individual needs, the “cryptic” quality of compliance is all too clear!
Editor’s Note: Peggy A. Burns is tenured faculty, emeritus of the TSD Conference, as well as former school district in-house counsel, editor of Legal Routes, and a consultant on student transportation compliance issues. She has written numerous articles for School Transportation News and is a past contributing editor of the magazine.
