Student transportation and constitutional rights

The case of Enright v. Springfield School District is a lesson in the important need for a quality program of training for bus drivers. The case resulted in a jury verdict upheld by the court against a school district and in favor of a seven year old student abused on a bus by older students. Liability against the school district was found because the school district did not train its driver and had policies and practices in place that made environment of the bus unsafe.

The school district owned and operated a bus that transported a 17-year old male student with emotional issues to an approved private school, a 14-year old male with learning disabilities to a private school, and a seven year old girl with Asperger’s syndrome to a private school. In short, the two boys engaged in sexualized conduct toward the girl that caused her significant trauma. Parents filed suit seeking relief via Section 1983 for violations of Section 504 of the Rehabilitation Act, the Americans With Disabilities Act, the IDEA, and Fourteenth Amendment due process rights.

When a government agency’s failure to train amounts to deliberate indifference to protected rights, the agency may be liable for resulting harm. In this case, among other things, the school district did not provide any training to bus drivers; did not provide bus drivers with information about the special needs of children on the bus; did not take steps to separate elementary and high school students, or require the bus driver to do so; and simply instructed its bus drivers to use their best judgment whether to report problems. 

In this case, a videotape of the day in question showed the bus driver did not maintain any control over the students or seek to intervene. According to the evidence, the inappropriate conduct, and thus the harm suffered, was the direct result of the school district’s failure to train the bus driver along with other school district policies, such as not creating and enforcing a code of conduct on its school buses (the 17-year old had a history of such misconduct, but no consequences). 

School districts need to give real attention to transportation issues. As noted by the court, creating and enforcing a code of conduct is a critical component of appropriate transportation. And of course, driver training must occur. Such training, however, should be well-planned and helpful (telling a driver to deal with it is not training). Not only should the training involve refresher information regarding the Department of Transportation manual, but also, among other things, include efforts to maintain a continuous loop of communication regarding student behavior and student needs and encouraging student-parent-driver-supervisor communication; identification of situations requiring expert intervention; information about various disabilities; methods of appropriate behavior control; and seating. Of course, this involves more than just the drivers, as it also depends on a comprehensive plan for transportation policies and the participation and recommendations of the many experts resources available to school districts, such as behavior experts.

Many school districts use independent contracted services in addition to or in place of district owned and operated buses. In such situations, school districts need to be sure their contracts properly protect it and its students (such as assurance of quality, insurance, and indemnification), while also balancing independent contractor rules.

Transporting thousands of students daily to many different destinations in itself is difficult and costly, and more so for special needs students. Moreover, students have little ability to protect themselves in the confines of a bus. Given this reality, a school district must take all reasonable and documented steps to assure that it is providing appropriate and safe transportation. And by all means, being sure that it is not making the situation worse.

The rights of disabled students in higher education.

This past Spring, the U.S. Department of Education, Office for Civil Rights, issued two letters and a guide relating to students with disabilities and higher education. 

The first, addressed to institutions, summarized the rights and obligations of disabled students in higher education.  The second, addressed to parents, similarly explains rights and obligations and addresses how those rights and obligations differ in higher education than in public K-12 schools. 

The letters themselves do not offer any new insights or agency positions. But they serve as a useful reminder, particularly for parents, of how different circumstances are in higher education than in K-12.

The guide, Transition of Student with Disabilities to Postsecondary Education: A Guide for high School Educators, a question and answer format, is available here.

And the impact of the Winkelman decision is. . . .

The U.S. Supreme Court’s May 21, 2007 decision in Winkelman v. Parma City School District says parents are permitted to represent their own special education interests in federal court.  Parents, schools, and the courts will, of course, feel the impact of this decision; only the degree of impact, particularly the amount of litigation, remains uncertain.

The Court’s actual pronouncement is not very remarkable. That parents have certain special education rights has never really been in doubt. All the decision adds is that parents have the right to enforce IDEA’s “other mandates” such as the child’s right to FAPE. “Parents may seek,” the Court wrote at page 15, “to enforce this mandate through the federal courts, we conclude, because among the rights they enjoy is the right to a free appropriate public education for their child.” (Emphasis added.)  

In other words, parents have the right to “enforce” a right, that is, the child’s right to FAPE. 

In my view, this is a case where the dissent got it right:

the majority decision takes a fundamental common law rule, complete eviscerates it, and does so based on reading between the lines despite no clear statutory text intending to upset existing law. Be that as it may, the dissent is not now the law.

In the end, parent attorneys probably will use the Court’s broad words of substantive parental rights to drive new due process issues, Section 1983 Civil Rights litigation and money damages claims. Ultimately, this concern, too, will come before the Supreme Court as the Courts of Appeal are split on whether a simple violation of IDEA gives rise to money damages, either directly or via § 1983. More on that later when I discuss A.W. v. The Jersey City Public Schools in "Money damages, disabilities, and education."

TItle IX, gender discrimination, and money damages

The question of money damages under various anti-discrimination / inclusion education statutes seems to be a hot subject recently. The recent en banc Third Circuit Court decision in A.W. v. The Jersey City Public Schools, 341 F.3d 234 (3d Cir. 2007), discussed in another entry, ruled that there is no cause of action under Section 1983 for money damages based on a violation of IDEA and or Section 504.  

A recent federal district court case from Puerto Rico, Frechel Rodriguez v. Puerto Rico Dept. of Educ., 478 F. Supp. 2d 191 (D. Puerto Rico 2007) (unfortunately, I have not found a public domain copy), reached a similar outcome in a Title IX-based claim of gender discrimination. Specifically, the issue was whether a plaintiff has a right of action under § 1983 to redress violations of Title IX.  According to the case, the Sixth and Eighth Circuits have held such a right exists, but the Second, Third, and Seventh Circuits have ruled such a § 1983 claim is barred under the Sea Clammers doctrine announced in Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981).  The Frechel Rodriguez decision dismissed the Title IX-based § 1983 claims.

So what does this trial court case from Puerto Rico mean for us? 

While the Frechel Rodriguez case is statistically not likely to become a Supreme Court case (indeed, it was not appealed), it clearly demonstrates an area in which the federal courts of appeals disagree. 

Interested parties should look ahead for such “splits among the circuits” in order to raise and preserve possible appeal issues. Disagreements among the courts is a factor the federal appeal courts and the Supreme Court consider when reviewing federal statutory claims or constitutional rights. Not surprisingly, if all the cases are going one way, the chances of convincing the court to go the other way on appeal are not good.  In contrast, a split gives the case and the issue juridical life.

In Title IX actions, litigants need to be cognizant of the “split of authority” highlighted in Frechel Rodriguez when strategizing about their cases. 

Money damages, disabilities, and education

One shoe has dropped as a result of the recent en banc Third Circuit Court decision in A.W. v. The Jersey City Public Schools, 341 F.3d 234 (3d Cir. 2007), which ruled that there is no cause of action under Section 1983 for money damages based on a violation of IDEA and or Section 504.   The full court, aligning itself with other circuit courts and Supreme Court precedent, effectively overruled its 1995 decision in W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995) (unfortunately, the court's posted opinion is incomplete).

Basically, the court in A.W. reasoned that both IDEA and § 504 provide comprehensive remedies.  Because neither statute gives a textual indication that Congress sought to provide those comprehensive remedies in addition to a § 1983 remedy, the Sea Clammers doctrine bars any § 1983 cause of action. 

The problem for educational institutions (but to the relief of plaintiffs) is that the A.W. case addresses only one part of the Matula decision and money damages may still be available directly under § 504

(although probably not under IDEA – in addition to the simple fact that the statute does not say so, see the cases and discussions in Ortega v. Bibb County School District, 397 F.3d 1321 (11th Cir. 2005) among others). 

The court in Matula wrote "plaintiffs may seek monetary damages directly under § 504, as well as the § 1983 claim predicated on § 504."  As such, money damages claims directly under § 504, untouched by A.W., appear to still be viable in the Third Circuit.  On this issue, the Third Circuit is out-of-step with the other circuit courts and it is an issue the Third Circuit, if not the Supreme Court, will likely need to address in the future.

When that day comes, the viability of money damages based on a direct § 504 recovery theory is questionable. Because it involves a complex analysis similar to A.W., based on a cross- and back-tracking comparison of intervening Supreme Court, Third Circuit cases, and various anti-discrimination statutes, I will not give great detail. But in Alexander v. Sandoval, 532 U.S. 275 (2001), the Supreme Court held that private right of action for money damages requires proof of intentional discrimination, casting doubt on Matula’s reasoning, which was based on earlier Supreme Court cases. Indeed, In Pryor v. National Collegiate Athletic Association, 288 F.3d 548 (3d Cir. 2002), (unfortunately the link appears to be dead) the Third Circuit applied the Alexander evidentiary standard.  Recent cases such as Indiana Area School District v. H.H., 428 F. Supp. 2d 361 (W.D. Pa. 2006), show the need for reexamination of the standards for §504 money damages. At a minimum, direct § 504 money damages claims require proof of intentional discrimination or gross negligence.

One shoe has dropped; eventually, the other will, too.