After 20 years of consulting about legal issues impacting student transportation, I’ve reached the final year of my career.
I have one presentation scheduled for the Texas Association for Pupil Transportation in 2016, but, other than that, I’m likely to have given my final conference presentation at the end of this summer.
When I do presentations or workshops, I always seem to run out of time, always wish I could take a few more questions. Similarly, as much as I’m looking forward to retirement, I’m fighting that feeling that I need just a bit more time. I believe, though, that I can be satisfied by considering what it’s all boiled down to — the key messages I hope I’ve delivered.
In some ways, I wish I had begun my career thinking about what I could bring to the table — how you might benefit from having training from and discussion with a school lawyer. I didn’t really focus on that at the beginning. I only knew immediately after the first time I ever presented to a group of school transportation professionals that I wanted to “earn my keep” — I wanted you to want me to keep coming back. I felt an immediate connection, a tremendous respect for you and a desire to learn more about your deep commitment to the students you serve.
Now that my professional time with you is coming to a close, there’s no time like the present to reflect on what it’s all been about. Most of all, here’s what I hope you’ll do with what I hope I’ve taught you. Here are the actions that I believe will minimize the distraction, drama and drained resources that accompany legal proceedings.
1. Support vulnerable students
Be particularly sensitive to those who have no “voice”: vulnerable students with disabilities, any student who is the victim of bullying, a child whose parents are unaware of or unskilled in the need to advocate for their own children’s safety.
Initiate communication with individuals in your department, your organization and beyond who can help you understand the student’s needs. Seek avenues to meet those needs. Determine what is necessary to avoid inadvertently “revictimizing” the student or having a chilling effect on the student’s needs being heard and available remedies being explored.
2. Make defensible decisions
Here’s how you’ll know when you’ve made a defensible decision — and, more importantly, how your decision will be deemed “reasonable” in the legal arena:
• You had and used a process for making the decision.
• The decision is the product of objective reasoning with a basis you can articulate. It passes the “straight-faced” test — you can convey it without looking like you’re full of self-doubt and feeling guilty about stretching the truth.
• You can point to your own behavior and that of the members of your team that reasonably demonstrate your concern for the student involved.
• The decision falls within reasonable interpretation of applicable law, regulation and your own policy.
• Your plan is likely to work, or is at least reasonably calculated to be successful.
3. Respond to the foreseeable
Don’t fail to see and respond to the foreseeable. Memorize the “Foreseeability/Reasonable Action Equation”: When you’re on notice of likely student or workplace issues, take reasonable steps that appear to be sensible ways to resolve the issues. The “head in the sand” approach just won’t work! Ask yourself:
a. Is there a basis to believe that harm is likely?
b. Did the school district, company or its employees do anything to increase the likelihood of harm?
c. Were available options explored?
d. What does applicable policy permit?
4. Take risks worth taking
How can you judge whether a risk is worth taking? Begin by understanding the nature of the risk, what’s at stake and the likelihood that the benefit to be gained from a particular action is greater than the danger from the risk.
The best example I can think of is sharing sensitive student information that can impact the ride with the driver and the monitor. There’s a risk that you’ll be accused of breaching confidentiality and/or that they’ll improperly convey it to other individuals who are not authorized to have it. But suppose the driver and monitor don’t have the information at issue — in what way will the student’s ride (or that of others) be impacted?
Can you minimize the risk of being accused of breaching confidentiality constraints by pointing to legal authority for sharing that information? Can you further minimize the risk by directing the driver and monitor that they are not to further share the information you have conveyed? If sharing the information may keep the student safer, and there are ways to minimize any risk involved, there’s no question that sharing the information is a risk worth taking.
5. Seek informed responses
Don’t be afraid to say, “I’ll have to get back to you.” Being smart on demand is hard.
Most situations — admittedly not all, but most — will allow you the time to check with a supervisor, talk to other staff members, learn more information, get “the rest of the story,” or just review a policy or law that you’re unsure of.
As long as you do, indeed, get back to the person who contacted you within a reasonable period of time with a defensible answer, taking that short delay was the right course of action.
6. Utilize tools keep learning
Have at your disposal the tools that will build and support your position: common sense, a regard for students’ best interests, strong policies, and knowledge and regard for applicable law and regulation.
That means get the training you need. That means engage in regular self-assessment. That means monitor what’s actually happening. That means listen and learn on a continual basis.
Finally, have confidence in yourself. You’re professionals, and you know so much. Thank you for letting me into your world. If we’ve met, if you’re reading this article, if you’ve read something else I’ve written or watched a video I’ve been involved with, you are, like many of your colleagues, a lifelong learner.
Your students are fortunate to have you.
Peggy A. Burns, Esq., is president of Education Compliance Group. For the past 20 years, she has been providing guidance on legal issues for the pupil transportation industry through her consulting, conference presentations, articles and videos. Burns will retire at the end of 2015. She can be reached at email@example.com.