Articles

Another One Drives the Bus - School Bus Law in Minnesota

Phillip J. Trobaugh
(email)
Mansfield, Tanick & Cohen, P.A.
1700 U. S. Bank Plaza South
Minneapolis, MN 55402
Tel: 612.339.4295
FAX: 612.339.3161

As schools across Minnesota start to reopen their doors this Fall, it is interesting to find that Minnesota law is replete with cases concerning school buses, their drivers and passengers. Why should these seemingly innocuous, big, yellow and black-painted vehicles be at the center of so much litigation? It may have something to do with the special role that school buses and their drivers play. There are more than 930,000 schoolchildren in Minnesota, and more than 10,000 school buses.⁽¹⁾ Transporting schoolchildren between home and school occupies a kind of legal limbo. Accidents and illegality occasionally occur, both on the road and on and around the bus. Who is responsible: driver, private school bus company, public or private school district? An examination of recent cases and statutes reveals some of the interesting categories of law school buses, et al, find themselves parked.

Hey! He's Gonna Sit By You!

The duty of care privately-owned school bus companies owe to their passengers was addressed by the Minnesota Supreme Court in Anderson v. Benjamin Sheridan Corporation.⁽²⁾ In Anderson, a student was leaving the bus at the end of the school day, and was injured by a paintball gun's discharging.⁽³⁾ The plaintiffs argued that the driver had reason to know of the paintball gun's presence while on the bus, and that it may have been fired from the bus and brandished while on the bus. The driver told the student to put it away, and apparently no incident involving the paintball gun actually occurred while on the bus.

The Supreme Court held in a pithy but nonetheless important decision that the bus company was not liable in this situation, as the complained of event occurred off the school bus. The school bus company's duty was limited to safely depositing children and students at their destinations.⁽⁴⁾ This case is important in delineating the scope and breadth of a private school bus company's responsibility to its passengers.

A related "duty of care" case was handled in Montgomery v. I.S.D. No. 709.⁽⁵⁾ Montgomery dealt with alleged harassment of a student based on the student's perceived sexual orientation, over a 11-year time span. Much of the harassment apparently occurred while on the school bus, and the student complained to the driver, among others.⁽⁶⁾ Eventually, the school district revoked the bus riding privileges of two of the offending students, but this was reversed a week later after a parent complained of the hardship this caused, because the school was in a rural location.⁽⁷⁾ The plaintiff then stopped riding the bus entirely "in order to circumvent the continuous harassment he experienced there."⁽⁸⁾

The Court found that the behavior alleged by the student went far beyond mere student-on-student "mean behavior," to explicit sexual acts and "extraordinary frequent and pervasive verbal abuse."⁽⁹⁾ The Court held that the student's claims of discrimination were not subject to summary judgment. This case is significant because it puts school districts on alert that even though they knew of and took steps to control student-on-student harassment that may not be enough to escape liability. The Court apparently thought it was significant that there were literally hundreds of complaints made by the Plaintiff to various school officials compared with a paucity of responsive action by the school district to control the situation.

Employment Issues

Sometimes employment issues occur concerning the adults on school buses, like drivers and monitors. There is one commonality in these cases: the unique circumstance of the work setting was often an issue in each case, even though the claims were widely disparate from case to case. It seems safe to say that the bus driving experience, while not appearing to be particularly unique, does in fact have some industry-specific issues which put another twist on employment law for attorneys to consider.

Most recently, a case involving the seasonal nature of driving school buses and a claim for unemployment compensation was decided. In Parker v. IND School District No. 831, the bus driver argued that because he had to re-bid for his job at the outset of each school year, he did not have a "reasonable assurance" that his job would remain, or that he would not be given one "substantially less favorable" than the one he had; the statutory phrases in quotations being the focus of the court's discussion.⁽¹⁰⁾ The drivers apparently bid on open positions each fall, and Parker maintained that the combination of bidding itself, as well as the number of potential drivers bidding would cast considerable doubt as to whether he could return. The court held there is no guarantee as such of continued employment, and given Parker's long history of returning to his job each fall for the last 10 years he did have a reasonable assurance he would be able to return. The Court also found that school bus driving was "analogous to that of a substitute teacher ... 'which by its very nature involves sporadic employment.'"⁽¹¹⁾ Based primarily on these two reasons, Parker was ineligible for unemployment compensation. This case is significant in further delineating the rights of employees who have irregular assignments and schedules.

Johnson v. ISD No. 118 involved a conflict between a school bus driver and a bus monitor, who had a history of interpersonal disputes.⁽¹²⁾ The driver had at one time backed the bus down a road to retrieve a wallet while children were on the bus. The monitor reported this to the supervisor, and while the supervisor agreed that this had been dangerous, the supervisor had already known about it as the driver had himself previously self-reported the incident to the supervisor.⁽¹³⁾ Apparently, the driver and monitor could not get along, and the supervisor offered the monitor a position on another bus or be terminated. The monitor refused the transfer because her children rode on the bus she was currently assigned to and felt they would be unsafe with the bus driver alone. Johnson was subsequently fired.⁽¹⁴⁾

Johnson immediately filed charges of discrimination under the Minnesota Human Rights Act (MHRA) with the Minnesota Department of Human Rights, which dismissed the claims. Johnson then brought a pro se lawsuit alleging a whistleblower claim, among others, which was dismissed by the trial court on the grounds that Johnson's MHRA claims barred the whistleblower claim.⁽¹⁵⁾ The trial court relied on Williams v. St. Paul Ramsey Med. Ctr., Inc.⁽¹⁶⁾ in which the plaintiff alleged both sexual harassment and whistleblower claims based on the same set of facts. Williams is known for its holding that the exclusivity of remedies provision in the MHRA bars the whistleblower claims when the claims are based on the same facts. On appeal here in Johnson, the Court held that the claims brought under the MHRA did not preclude the whistleblower claim, because each were based on separate set of facts and claims.⁽¹⁷⁾ However, the Court held that Johnson was unable to satisfy the prima facie elements of her whistleblower claim, because the offer of transfer here was "neutral," and a "neutral transfer does not become an adverse employment action or a constructive discharge because of unique personal circumstances, extraneous to an employee's employment."⁽¹⁸⁾

Johnson also brought a battery claim, alleging the driver intentionally and abruptly applied the brakes, causing Johnson to fall while she was standing in the bus tending to some students. However, because she could not see whether there was a good reason or not for braking, the battery claim failed as well.⁽¹⁹⁾ In addition, Johnson alleged that the trial judge had a conflict of interest because both she and the judge lived in the same town where the bus route originated. Without more, this claim failed, as well as Johnson's 1^st Amendment claim.⁽²⁰⁾

Snow Daze

While most schoolchildren, at one time or another, have rejoiced over school closings due to excessive snow, the event proved to be a slippery issue in terms of whether to pay school bus drivers for snow days. This was handled in Behnke v. ISD No. 233, where certain non-union drivers threatened not to work unless snow days were paid for.⁽²¹⁾ The School District refused, and two drivers, who were veterans, in protest did not work the day following the decision.⁽²²⁾ The drivers were subsequently terminated.

While the School District did provide notice of right to request a hearing under the Public Employees Labor Relations Act ("PELRA"), it neglected to include a typical notice of the right to request a hearing under the Veterans Preference Act ("VPA"), prompting a blizzard of attorney work.⁽²³⁾ A hearing on the issue was heard before an Administrative Law Judge, who ruled that the two drivers were entitled to a hearing concerning their termination under the VPA, and order reinstatement with full back pay until such a hearing could be held; the School District then appealed to the Court of Appeals. Relying on Garavalia v. City of Stillwater,⁽²⁴⁾ the School District argued that under PELRA, illegal strikes barred the right to request a hearing under the VPA. The School District also argued that regardless of its failure to notify, the two drivers failed to request a hearing within the mandatory, 10-day time period.

The Court of Appeals noted that PELRA had been amended since the Garavalia decision, which removed mandatory language in the statute precluding rights under other statutes (such as the VPA) in place of more permissive language.⁽²⁵⁾ The statute was also amended to say that a municipality needed to take some action regarding termination of an employee, which did not occur here. The Court further noted that there was nothing in PELRA that specifically excepted the VPA. As for the argument that the bus drivers were beyond the 10 days to make a request, the Court of Appeals was not snowed; it found that notification of the right to request a hearing under the VPA rested solely with the employer, regardless of whether the employee already knew of his or her rights, or not.⁽²⁶⁾

Statutory Status

Perhaps not surprisingly, Minnesota has a number of statutes dealing specifically with school buses. The Equal Treatment in Transporting Students Act, for example, provides that intra-district transportation must be equal for "all school children."⁽²⁷⁾ Transportation must be provided to the student if he or she lives "two miles or more from the school."⁽²⁸⁾ The Act, which seeks to establish the ways and means of such transportation in a variety of circumstances and settings (e.g., instruction in a nonresident district,⁽²⁹⁾ attendance in another state,⁽³⁰⁾ and disabled riders⁽³¹⁾) by the individual school districts and the boards that oversee them, provides one other important feature: indemnification. A school board may obtain insurance indemnification for its district-owned buses "against claims for injuries and damages arising out of the use and operation . . . while it is leased or rented."⁽³²⁾ The costs of such transportation, in its various forms, are addressed in considerable detail at Minn. Stat. § 123B.92, et seq.⁽³³⁾

The latest appellate case to discuss the Act was Healy v. ISD No. 625.⁽³⁴⁾ Healy involved a group of parents who had their children's transportation costs to Gethsemane Lutheran School covered by a local school district. The school district believed that Gethsemane was within its district as part of a larger Lutheran school which had its main campus within the district.⁽³⁵⁾ When it learned that Gethsemane was actually a stand-alone institution outside of the district, and that there were five other Lutheran schools within the district, it refused to pay the transportation costs.⁽³⁶⁾ The statute provides for the costs of transportation up to the district's boundary if there are no schools within the district maintaining "appropriate grades or departments."⁽³⁷⁾ The parents argued that the other Lutheran schools within the district were part of Lutheran synods different from the synod Gethsemane was affiliated with, and so, denial of transportation funds constituted a denial of their substantive due process rights.⁽³⁸⁾ The 8^th Circuit Court of Appeals rejected this line of reasoning, stating the result the parents sought would essentially "require the school board to compare religious programs. The board ... should not be required to engage in theological hairsplitting of sectarian schools."⁽³⁹⁾ Thus, the Court concluded, the board's decision was not arbitrary or capricious, and the substantive due process claim failed.

Minnesota also has an extensive and detailed statute concerning school bus safety.⁽⁴⁰⁾ The third week of school has been set aside as "School Bus Safety Week."⁽⁴¹⁾ During this time, students from grades kindergarten to 10^th go through an age-appropriate program designed to teach the fundamentals of school bus safety, such as: appropriate conduct while on the bus, danger zones around the bus, how to safely board and exit the bus, and bus evacuation and emergency procedures.⁽⁴²⁾ School districts also need to provide a "comprehensive, written policy governing pupil transportation safety."⁽⁴³⁾ The policy must address at least sixteen separate issues, all of which are detailed in the statute. The policies are to be overseen within each district by a school board designated school transportation safety director.⁽⁴⁴⁾ Even advertising on school buses is subject to regulation.⁽⁴⁵⁾ For example, tobacco and alcohol ads may not appear on school buses.⁽⁴⁶⁾

School buses occupy a unique corner of Minnesota law. Snow days, employment disputes, costs of transportation, safety issues and even ads are covered by statutes, caselaw or both. Big and largely yellow, these clunky vehicles demand respect on the road, and in the courtroom.

Mr. Trobaugh is a Shareholder with Mansfield, Tanick & Cohen, P.A. Mr. Trobaugh is Chair of the law firm's Education Law Department, and also practices employment law. Mr. Trobaugh thanks Paul E. Welling and Amy L. Cralam for their assistance with this article.

1. Data provided by the Minnesota Department of Children, Family and Learning. Specifically, the latest available figures show 844,685 public schoolchildren, and 88,380 nonpublic. The total number of school buses is 10,601. The school bus industry even has its own magazine and website: www.schoolbusfleet.com.

2. 526 N.W.2d 625 (Minn. 1995).

3. Id.

4. Id.

5. 109 F. Supp. 2d 1081 (D. Minn. 2000).

6. Id. at 1085.

7. Id. at 1086.

8. Id.

9. Id. at 1094.

10. 2001 Minn. App. LEXIS 1023, *1-4 (September 11, 2001).

11. Id. at * 6 (citing Ykovchick v. Pub. Sch. of Minneapolis, 312 Minn. 139, 142, 251 N.W.2d 626, 628 (1977)).

12. No. CX-00-1998, 2001 Minn. App. LEXIS 605 (Minn. Ct. App. June 5, 2001).

13. Id. at *2.

14. Id. at *3.

15. Id. at *5.

16. Williams, 551 N.W.2d 483 (Minn. 1996).

17. Johnson, 2001 Minn. App. LEXIS 605, at *8.

18. Id. at *14.

19. Id. at *13-14.

20. Id. at *15-16.

21. No. CO-96-420, 1996 Minn. App. LEXIS 1138 (Minn. Ct. App. Oct. 1, 1996).

22. Id. at *3.

23. Id. at *3-4.

24. Id. at *5; Garavalia, 168 N.W.2d 336 (Minn. 1969).

25. Behnke, 1996 Minn. App. LEXIS 1138, *6-8.

26. Id. at *8.

27. Minn. Stat. § 123B.86, Subd. 1 (2000).

28. Minn. Stat. § 123B.88, Subd. 1 (2000).

29. Minn. Stat. § 123B.88, Subd. 4.

30. Minn. Stat. § 123B.88, Subd. 7.

31. Minn. Stat. § 123B.88, Subd. 19.

32. Minn. Stat. § 123B.88, Subd. 15.

33. Minn. Stat. § 123B.92 (2000).

34. 962 F.2d 1304 (8^th Cir. 1992).

35. Id. at 1305.

36. Id.

37. Id.; see also Minn. Stat. § 123B.86, Subd. 2(b) (2000).

38. 962 F.2d at 1305-06.

39. Id. at 1307.

40. Minn. Stat. § 123B.90 (2000), et seq.

41. Minn. Stat. § 123B.90, Subd. 1.

42. Minn. Stat. § 123B.90, Subd. 2.

43. Minn. Stat. § 123B.91, Subd. 1 (2000).

44. Minn. Stat. § 123B.91, Subd. 2.

45. Minn. Stat. § 123B.93 (2000), et seq.

46. Minn. Stat. § 123B.93 (a)(1).