FRISCO, Texas — Several federal laws that define the transportation of students with disabilities and special needs have been updated recently or may be amended soon demand the attention of school districts and private contractors, said a lawyer who specializes in the subject area.
Betsey Helfrich opened the TSD Conference on Sunday. She has successfully represented school districts against a variety of claims in state and federal courts as well as in administrative and special education due process hearings. She also conducts local and national training on Section 504 of the Rehabilitation Act of 1973 and all areas of the Individuals with Disabilities Education Act.
Helfrich began by pointing out changes earlier this year to Title IX, which is commonly associated only with women’s sports. However, the law has broader implications for sex discrimination in federal programs that also affect school districts and transportation departments.
The new guidelines took effect on Aug. 1 except in 21 states that filed lawsuits to block their implementation. Helfrich encouraged audience members to research the law’s current status in their states.
Noting that Title IX requires the investigation of sexual harassment or sexual assault complaints, Helfrich cautioned against rote practices that could create legal hazards for a district, such as coding into the discipline system an incident on the school bus as an “assault.”
“Be really mindful if you or a driver are writing and coding something as sexual assault or sexual harassment … that we are also passing that info along to our Title IX coordinator,” she said. “Don’t code something as sexual harassment and end it there.”
She also cautioned resting on the laurels of simply reporting it, for example to a principal. She advised ensuring an investigation is completed an that a Title IX coordinator has made a determination that the misconduct rises to a legal level. “Sexual harassment has a very specific definition. So, just because something inappropriate happened it must mean it rose to that level.” she added.
Every school that receives federal funds is required under the law to have a Title IX coordinator. An overhaul is likely coming to the Children’s Online Privacy Protection Act, or COPPA, which protects children under the age of 13 from the distribution of their personal information without parental consent. Proposed legislation would raise that age to 17.
“We should have new regs by this time next year. How does it affect your daily life? Probably not a ton, except it really impacts the vendors that we contract with that keep student information systems,” Helfrich said. “Our vendors are going to have to be very careful going forward after these new regs about the information they have. … We can only contract with someone who promises not to sell our students’ information to someone else.”
Like COPPA, the Family Educational Rights and Privacy Act (FERPA) protects the privacy of student data. Amendments are pending. Because the law was enacted in 1974 and sets guidelines for how records must be kept, its provisions largely revolve around the keeping of paper records.
“Hardly anything is paper anymore. We keep our records electronically, everything’s in the cloud, we have apps, we have student information systems, so FERPA really does need an overhaul,” she said. “There’s new proposed regs, nothing new right now, but keep in on your radar for next year. We might have some new requirements about how we keep records.”
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Helfrich said a U.S. Supreme Court ruling about an issue totally unrelated to education could also have an impact on litigation involving school districts. The landmark case, Loper Bright Enterprises v. Raimondo, involved whether the National Marine Fisheries Service (NMFS) could require commercial fishing operations to pay the cost of government monitors assigned to their boats.
The justices concluded the NMFS did not have the power to make the rule, overriding the principle of the longstanding “Chevron deference” that directed courts to defer to an agency’s reasonable interpretation of an ambiguity in a law that the agency enforces.
“You might see more schools challenging statutes and regulations directly in court. It’s a little bit more school-friendly to not have Chevron deference,” she said. “So, what does that mean in the Department of Education? They might not have as much power to issue these guidance documents that schools have to follow.”
Free Appropriate Public Education (FAPE) guidelines under the Individuals with Disabilities Education Act (IDEA) require school districts to meet the unique needs of students with disabilities, including transportation. Of the 50.8 million K-12 students in the U.S. as of the fall of 2022, about 21 million rode school buses and approximately 7.5 million students were covered by the IDEA.
“It’s highly regulated and really unwavering,” she said. “There’s not a lot of flexibility with the IDEA,” Helfrich said. “It always goes back to FAPE.”
Meanwhile, Section 504, passed in 1973 as part of the civil rights movement, protects students and adults with disabilities from discrimination in places of public accommodation.
“Schools often say we don’t have to do this in our before-school or after-school programs because they’re voluntary, [for example] summer school, we don’t have to worry about that because it’s optional. That is definitely not true,” she said. “You see more cases in that area than really anything. If we opt to have a program, it has to be nondiscriminatory.”
The danger to school districts is that Section 504 “is loose-goosey, it’s not as regulated but it’s more dangerous” because it includes monetary damages for people who have been discriminated against.
“Parents can file discrimination lawsuits under Section 504 and seek monetary damages,” she continued.
The U.S. Department of Education’s Office of Civil Rights processed the highest number of such cases last year, resolving 45 percent more cases than the past record.
“It’s free to file. It’s very easy to file an OCR complaint. You don’t have to be represented by an attorney and then the OCR comes in and investigates. Let’s say an incident happened on the bus so they’re claiming discrimination against the bus driver. That driver will be interviewed. You as the director will be interviewed. The special education director will be interviewed,” she noted.
“Usually the superintendent, too. Anybody involved in this case will be interviewed. They always say, ‘Who is your 504 coordinator? Who’s in charge of investigating discrimination cases in your district?’” she continued. “And, literally, nine out of 10 times, the principal says somebody else, the counselor says somebody else, the bus driver says somebody, and the superintendent always says, ‘It’s not me. I don’t know who it is. It ain’t me’ and the OCR investigator is writing furiously. That is one easy thing to control.”
She urged audience members to return to their districts and train drivers about the district’s coordinator in case a parent mentions a potential disability complaint. Sharing that information on a single slide and keeping that slide “will go a long way to start out on the right foot,” she said.
Helfrich outlined a handful of recent court cases, including several that went against districts. She contended that the districts’ cases could have been strengthened by transportation departments being more involved in the writing of individual education plans.
Instead, all too often, those plans are written without such expertise and districts become locked into unrealistic requirements. And, many times IEPs include services that aren’t even needed yet lock the transportation department into expensive commitments.
“And once it’s in the contract, it’s there,” she warned. “Even if a parent is saying, ‘we didn’t want it’ at first, they’re going to want it.”
She cautioned case outcomes often tilt in favor of the parents of children with disabilities and special needs, particularly when school personnel mishandle interactions and neglect to properly document actions. “Juries and courts hate when schools say, ‘We don’t do that because if we do it for you, we’ll have to do it for everyone,’” she added.
Helfrich concluded with the joking rejoinder, “Do not let this scare you into resignation. Honestly, as long as you act reasonably, really think through, individualize, each student’s situation you honestly are going to be OK in this area. Keep your good common sense. Keep being good people, and it’s all going to be OK.”
