Among areas of focus of school transportation litigation, the transportation of students with disabilities is especially complex. The use of Child Safety Restraints (CSR) — often generalized, simplified or incorrectly characterized as safety harnesses — has led to tort claims, civil rights complaints and due process requests.
National Highway Traffic Safety Administration (NHTSA) guidelines and Federal Motor Vehicle Safety Standards (FMVSS, at 213 and 302) include federal statements about CSRs. Individual states may have statutes or regulations that address the use of “mechanical restraints” generally. Typically, however, legal challenges stem from some parents’ basic antipathy toward the use of any device that limits movement. As an Alabama court commented in In the Matter of P.T. v. Jefferson County Board of Education, discussed below, “Of course the plaintiff does not want P.T. harnessed. No parent would.”
But school districts have a genuine interest in protecting the safety of all students on the bus, as well as the driver, bus attendant and even occupants of other vehicles and pedestrians. These individuals are all potential victims of driver distraction or injury if a student who will not remain in his seat suddenly gets out of his seat with harmful consequences. Other students may have disabilities that interfere with or make impossible their ability to hold themselves in an upright position. Such youngsters, too, may need a safety-seating device to allow them to ride to school.
School attorneys, like educators and school transportation officials, must be alert to a number of overlapping issues when the use of CSRs is considered or implemented:
The need for parental involvement in the discussion;
Individualized consideration of each child’s special needs;
Investigation of alternatives, including reimbursement to parents if they will provide transportation;
Appropriate collection of data, assessment of behavior triggers and possible remedies for potentially dangerous conduct prior to use of restraint;
Analysis of the district’s previous unsuccessful attempts to prevent danger from a student with the use of lesser interventions;
Documentation that danger to the student at issue and/or others is likely in the absence of restraint;
Evaluation of the effectiveness of the CSR system identified for the child prior to use;
The restraint used — both in type and frequency — should be as minimal as necessary in order to be effective without compromising safety;
Identification of appropriate assignment and functions of various staff members (for example, personnel employed by the various entities involved, like intermediate units, school districts and bus companies; special-education personnel, including physical and occupational therapists; drivers; and bus attendants) in needs identification, and installation and securement of CSRs;
Effective training of all entities’ staff members with responsibilities for installation and securement of the CSR, including substitute drivers and attendants; and,
Achieving balance between timely implementation of the IEP and resolution of all safety issues.
How these considerations can potentially stave off, or, at least, contain adversarial relationships is best understood in the context of reported cases.
Parent’s case reaches dead-end in four-year battle over harness
On June 28, 2006, in an unpublished decision, the 11th Circuit Court of Appeals ruled in favor of an Alabama district’s use of a harness on the school bus (P.T. v. Jefferson County Board of Education, 46 IDELR 3). The court affirmed the district court’s Nov. 29, 2005, judgment without comment, other than to call the parent’s arguments “meritless.”
P.T. had been diagnosed as autistic, and was 5 years old at the time of the incidents leading to this litigation. During the summer of 2002, the supervisor of special-education transportation resorted to use of a safety harness when P.T. had a tantrum and accosted the bus attendant who accompanied her to an IEP-mandated program.
At the due process hearing that preceded the actual litigation, it was accepted as fact that P.T.’s mother had not been notified of the decision to use the harness and was “floored” when “she found this child zipped and belted down in the harness.” However, the parties agreed that the parents voiced no objection or concern until fall of 2002, and had, in fact, indicated on a transportation registration form that their daughter might need a special restraint.
At the start of the school year, the district had attempted transportation on a special-education bus with a total of six children, a driver and an aide, using only the lap belt for P.T. By October, however, the girl’s tantrums and injurious behavior had increased, and she had left her seat on the bus on several occasions. A transportation staff member was asked to ride the bus to observe. The district’s director of exceptional education directed an autism specialist to observe behavior precedents. With information from these observations, the issue was addressed at an IEP meeting. P.T.’s mother objected to the harness and asked that other options be considered.
P.T.’s size, impending puberty and the often unpredictable nature of her behavioral episodes concerned the district in 2002. The district considered and tried options besides restraints, including padding the bus window to minimize the possibility of injury when P.T. pounded the window; providing snacks prior to her getting on the bus to eliminate hunger as an apparent contributor to the escalating behavior; and removing her shoes when she entered the bus to avoid her throwing them at others.
By January 2003, she had bolted for the rear emergency exit of the bus on at least one occasion. The district concluded that alternatives were not viable and another IEP meeting was called. P.T.’s parents did not attend; the use of the harness was restarted. The director of exceptional education wrote to P.T.’s parents to notify them of the decision on the first day the harness was used.
The district court’s decision noted that, with the harness, P.T. remained in her seat, “her tantrums have decreased and her behavior is more frequently acceptable. The [district] has kept behavior data on the bus to see if the harness increased P.T.’s tantrums (as her mom anticipated), but found no evidence that it did.”
Her parents had not offered evidence that “less restrictive approaches which had not already been tried were available.” They were not available to transport their daughter. They argued that the district had not considered assigning a one-on-one aide to P.T. The testimony of the aide assigned to support all six children on the bus was that “she devoted all her time and attention to P.T., but could no longer control P.T.”
The school transportation context
The court found that the district’s statutory duty to provide transportation services to P.T. did not incorporate allowing the child “to roam a moving bus at will.” Like a number of previous decisions by other courts, the district court focused on the context in which the harness was used: “Unlike using restraints in a classroom, a bus is a vehicle designed for transportation, not education. Because a vehicle moves in traffic, tantrums, behavioral outbursts, throwing objects and attacking others is much more dangerous behavior in a bus than in a classroom.”
Moreover, the hearing officer had noted, “Although special transportation is a related service, a related service is by its nature and definition conceptually distinct from ‘special education’ or ‘specialized instruction’ itself … [S]pecial transportation … provides access to the educational setting. However transportation is not the educational setting itself or a component of a program of specially designed instruction developed for the purpose of meeting the unique educational needs of children with disabilities.”