DEFUSING THE LEGAL LIABILITY TIME BOMB
ANALYSIS OF SCENARIOS
ANALYSIS OF LEGAL ISSUES RAISED IN SCENARIO 1
ISSUE
New driver unfamiliar with
route
Communication with
school/ district/ parents
ANALYSIS & RECOMMENDATIONS
School district should ensure that all bus drivers are familiar with bus
routes prior to start of school year. Should ask for documentation of
procedures used by bus company to ensure that new drivers are prepared.
This scenario indicates that there was a breakdown somewhere in that
process, resulting in the driver becoming lost.
The driver should have immediately contacted the school principal and
transportation coordinator when he got lost. The delay could have been
reduced or eliminated if earlier contact had been made to the district.
The district should have in place procedures for contacting
parents/guardians whenever a transportation delay occurs.
Addressing student
misbehavior on the bus
The contracted bus company should have reached out much sooner to
speak with a district representative.
The driver should have been trained to address student discipline issues
that occur on the school bus. (See training requirements below). The fight
should not have caused the driver to become distracted and then lost.
The driver should have immediately informed the school principal and
district transportation coordinator about the fight on the school bus. A
written incident report form should have been completed, ideally the same
day.
Contracted bus service
and addressing bus driver
performance concerns
The district should also consider installing cameras on school buses.
The contract between the district and bus service should clearly outline the
vendor's responsibilities regarding safety, staff training, and reporting. The
district should also be viewing the quality of the training provided.
Where there are concerns regarding the performance of a bus driver
employed by a vendor, steps should be taken to immediately address
those concerns, and where appropriate the district should insist on a new
driver.
Training for Bus Drivers
School districts must ensure that bus drivers receive all required training,
including training on student management and discipline, school bus
accident and emergency procedures, conducting emergency exit drills,
loading and unloading procedures, inspecting vehicles for students left on
board, and the use of student records, including responsibility to ensure
privacy of student records. See N.J.A.C. 6A:27-11.3
Effective training on student management and discipline could have
helped alleviate driver distraction that occurred in this scenario.
ANALYSIS OF LEGAL ISSUES RAISED IN SCENARIO 2
ISSUE
Bus Accident
Employees Injured on bus
ANALYSIS & RECOMMENDATIONS
The incident must be promptly reported to law enforcement, the school
district and the insurance carrier. A system should be in place for
communicating with parents and guardians.
Protocols should be in place for immediate medical examination of any
employee injured on duty. Here, the paraprofessional was not sent to the
hospital, and was later examined by her chiropractor. It would have been
better for her to be examined by a licensed physician first.
It is likely that a workers' compensation claim will be filed for the inured
paraprofessional aide and bus driver. It is critical that information is
gathered as soon as possible by the district regarding the specifics of how
the accident and injuries occurred, the extent of the injuries and any
lingering effects.
The employee was standing on the bus at the time of the incident. This
raises issues about proper safety and whether the employee needed to be
standing at that time.
Students injured on bus
When students are injured, parents or guardians should be immediately
contacted. The scenario does not indicate that this occurred. The
students should be accompanied to the hospital by a district employee.
The extent of any student injuries should be immediately documented.
Bullying of child with a
disability
Confidentiality v.
Information sharing
regarding student with IEP
Distracted driver
Any students who may have hit their heads should be examined, even if
not reporting any immediate symptoms.
The comments made by a student on the bus, calling another student
"special Johnny" indicate that an HIB incident may have occurred. This
needs to be reported verbally that day, as soon as possible, to the
principal. An HIB investigation must then be initiated within one school
day of the verbal report.
Additional requirements must be followed because the case involves a
student with a disability. The case manager should be contacted before
the student is interviewed. If HIB is found to have occurred, the IEP team
must be convened to assess the impact of the incident on FAPE.
The scenario raises questions about whether the bus driver should have
had some information on Johnny and his disability. In appropriate
situations, a school bus driver can be considered a school official with a
legitimate educational interest and may be entitled to information
regarding a student with a disability.
The paraprofessional has raised allegations that the driver may have been
distriacted due to texting. This claim must be investigated promptly, and
raises potential criminal issues with could involve law enforcement.
ANALYSIS OF LEGAL ISSUES RAISED IN SCENARIO 3
ISSUE
Student misconduct
Teacher response
Staff member bullying of
student
Staff member mental
health issues
Staff member discipline
and corrective action
Student confidentiality
and records
ANALYSIS & RECOMMENDATIONS
The student, Jenny, was late to class and displayed a lack of respect for her
teacher. The district should impose appropriate consequences, as per its
code of student conduct. The student's response should be examined to
determine if it is an isolated incident or indicative of a larger school climate
issue.
Mr. Hothead did not react appropriately to Jenny being late for class. His
response served to embarrass Jenny in front of her peers, and created a
greater potential for conflict escalation.
Jenny's allegations of bullying must be promptly investigated. In this case,
Mr. Hothead's comments could be viewed as targeting Jenny because of
her lack of proficiency in math, which would be a distinguishing
characteristic. His comments may satisfy the remainder of the HIB
definition if it is determined that they were demeaning and caused Jenny
to suffer emotional harm.
The anti-bullying specialist cannot conduct the investigation, because it
would be a conflict of interest to investigate a colleague. The district
should have a procedure in place for an administrator to conduct any
investigation that is related to a staff member being accused of HIB, and
for a central office administrator to investigate any administrator accused
of HIB.
Mr. Hothead has chosen to share information with the principal regarding
ongoing therapy. It appears that Mr. Hothead believes that he needs to
immediately address any student that is disrespectful to him, as part of his
therapy, rather than keeping his feelings bottled up. If the issue with Jenny
is not an isolated incident, and is part of a larger pattern representing a
significant deviation from normal mental health, then the school district
will need to follow the procedure outlined in N.J.S.A. 18A:16-2 in order to
require a medical examination.
The district should impose appropriate progressive discipline for the staff
member. Depending on the employee's prior history, this could be a
verbal reprimand, written disciplinary memo, or more serious actions (e.g.,
increment withholding) if there are significant prior issues. If this is not an
isolated incident, effective classroom management should be reflected in a
corrective action plan, or other improvement plan.
Mr. Hothead breached Jenny's confidentiality by sharing information with
the entire class regarding comments made by Jenny's 7th grade math
teacher. The scenario does not indicate that written records were shared
with the class, so there may not be a direct violation of FERPA, but sharing
the 7th grade teacher's comments was still clearly inappropriate.