This follow-up to our annual compilation of the year’s important legal developments focuses on transportation of students with special needs.
Use of Restraint
Physical and mechanical restraints used in school settings are hot topics. The use of both in connection with school transportation has been the subject of philosophical discussion and high stakes lawsuits for many years. A recent federal appellate court case alleging that a special desk constituted an illegal restraint fuels the debate about what is and is not a prohibited restriction on a student’s movement (Ebonie S. v. Pueblo School District 60, August 28). The desk was used both to discipline and help focus Ebonie, a student with special needs. The desk was not needed for orthopedic purposes, and was not used as an emergency safety measure.
The court found that the use of the desk did not amount to an impermissible seizure – a violation of the Fourth Amendment of the Constitution – based on three key facts:
- The position in which the desk forced Ebonie to assume – seated in a chair-facing forward position – “is the standard pose required of countless schoolchildren across the nation.”
- She had the ability to remove herself, even though she could not simply push out her chair.
- The restraining mechanisms were not attached to Ebonie’s body.
- The court also found that the use of the desk did not violate the girl’s Fourteenth Amendment liberty interests by finding that minimal restriction – like a school-day detention that was not designed to cause pain – was permissible.
In contrast, in Alexander v. Lawrence County Board of Developmental Disabilities (March 12), as many as five school employees held a student face down on the ground while sitting on him. This happened frequently, it was alleged, over a period of four years. There was no suggestion of any legitimate reason for actions – not even as a response to any student misconduct. The court noted the school continued to victimize the student by using more, inappropriate physical restraints despite the knowledge that the student was regressing, that his behavioral issues were worsening and becoming severe, and without a behavior analysis or any other attempt to understand the underlying reasons for this downhill spiral. The case was allowed to proceed to determine if the restraint was “conscience-shocking” and constituted disability-based discrimination under Section 504.
Wise school transportation administrators will examine the use of restraint devices and behavior management techniques with their own students through the lens of both these cases.
Special Sensitivities Can Complicate Investigation
The need to investigate when a student or parent complains of bullying and harassment is absolutely clear. But, as a Nevada case suggests, the heightened sensitivities of many students with disabilities can make it difficult to determine if the student has, in fact, been a victim at all.
In Clark County School District (May 11), no one – including the bus driver – saw an incident that a boy with an unspecified disability reported as bullying. In fact, the boy made several complaints about incidents both at school and on the bus, but there were never any witnesses. The hearing officer determined that those students and adults questioned by the district were credible, and that, more than likely, “Student becomes frustrated with his fellow students and interprets the behavior of those students as bullying.
In light of the fact that you must investigate and respond reasonably, it’s important that you document carefully the identities and statements of those individuals you question. Chronicle your conclusions about why the incident did or did not occur. Take appropriate remedial steps as appropriate. If necessary, use the report as a trigger for training, even if you find that you cannot be sure what, in fact, happened. Involve a behavioral specialist or the IEP team as a whole if unfounded reports continue.
Length of Ride and Shortened School Day Still Perennial Issues
When a student with a disability is on the bus for an especially long time, a hearing officer may be satisfied that the school district’s routing is permissible if there is lack of evidence of a negative impact on the student. In Oceanside (CA) Unified School District (March 5), the district’s extensive investigation and documentation prevailed. The parent could not demonstrate that the student was so fatigued that it impacted his in-home applied behavioral analysis (ABA) therapy sessions. Moreover, although the parent alleged that the long commute was unreasonable on its face, and, therefore, a failure to provide FAPE, neither state nor federal law defined the maximum amount of permissible travel time for special needs students.
In another case, although a Georgia parent complained that her son spent more time on the bus than nondisabled peers, the real focus of her complaint to the Office for Civil Rights was that his school day was shortened to accommodate the transportation schedule. OCR required a determination by the relevant IEP or 504 team as to whether compensatory educational services were necessary, and the school system committed to take the necessary steps to have students with disabilities receive a full instructional day. Atlanta (GA) Independent School System, July 12.
Failure to Follow the Rules Can Be Your Downfall
“The Rules” can be in a student’s IEP; they can be in a state, company or district’s driver handbook. Wherever a pertinent document prescribes with specificity what a driver is to do, the failure to follow such instructions may result in a variety of different remedies for a student.
In a new decision issued on Sept. 10 in I.R. v. Peirce, Pocono Transportation, Inc. and North Pocono School District, a substitute driver – Peirce – admitted that he did not follow the requirements of the Pennsylvania School Bus Driver’s Manual with respect to the conduct of evacuation drills. He used his own discretion and stayed at the front of the bus to deter “clowns,” although the manual stated that the driver should walk to the rear door to supervise the process. Furthermore, the manual states that “Students who are injured, disabled, or in a condition that may be aggravated by jumping out of the bus…should not be required to participate in the drill.” Although there was no dispute that the bus company had not been told by the school district about I.R.’s condition, the driver did not announce that students were not required to participate.
The court found that, given Peirce’s admissions that he did not follow the School Bus Driver’s Manual when conducting the evacuation drill, both he and the bus company were liable for I.R.’s injuries.
And, in Palm Beach County (FL) Schools (June 6), a bus aide told a parent that the student’s IEP didn’t apply to an aide and a driver, and refused to help the student on to the bus. The district entered into a resolution agreement, committing to train annually all transportation staff about the obligations of bus drivers and bus aides about implementation of IEPs.
STN Contributor Peggy Burns is the author, along with Lisa J. Hudson, of the book Defensible Decisions about Transporting Students with Special Needs: Lessons Learned from Legal Disputes. Peggy is also the creator of four video training programs for drivers, and the editor of the newsletter Legal Routes. Visit her company’s website at www.educationcompliancegroup.com, call her at 888-604-6141 or email peggy@educationcompliancegroup.com.
