Education Management Consulting, LLC and Dr. Edward F. Dragan provide expert services for schools, attorneys and individuals for school and education-related issues. Education expert witness testimony, report and consultation for attorneys, schools and agencies in US and Canada.
Sexual behaviors in young children can range from exploratory and normal to abusive and violent. Under federal law, the Title IX of the Education Amendments of 1972, schools have an obligation to protect children from inappropriate sexual behavior, including child-on-child sexual abuse. This obligation can be complicated when the allegation involves five- and six-year-old children, for whom touching body parts and viewing private areas may be considered normal sexual behavior. The issue faced by school administrators and attorneys who litigate claims of child-on-child sexual abuse involving young children is whether touching falls under normative or problematic child sexual behavior.
School districts have a responsibility to provide child-abuse detection and prevention training to administrators, teachers, and other staff. Clear school policies and procedures for staff to follow are imperative for recognizing whether behaviors between young students are normal or considered sexual abuse. Immediate and effective school follow-up and response to any complaints, knowledge, or observations of sexual interactions between young children is a way for school professionals and educators to meet their Title IX and mandatory-reporting obligations and allows for the provision of appropriate instruction of students who are exploring their sexuality.
Abnormal and Problematic Sexual Behaviors Among Young Children
Within the fields of early education and child development, it is commonly accepted that certain sexual behaviors among young children are normal. Young children are curious about what other bodies look like and want to know why girls’ and boys’ bodies are different.Behavior among young children becomes problematic when a child displays knowledge of sexual behavior beyond his or her age and developmental level, when there is a pattern of sexual behavior that does not change after correction by adults, and when sexual behavior interferes with the child’s own work or disturbs other students. Problematic sexual behavior may be a result of what a student has experienced or witnessed. Some children who have been sexually abused by an older child or adult may engage in aggressive and bullying behavior in a sexual context.
School personnel who become aware of inappropriate behavior need to respond immediately and work with therapists and other professionals to protect children in their care. The first step is to follow up on every incident and determine whether the behavior is normal — or an indicator of a more serious problem warranting mandatory reporting and requiring a Title IX investigation and remedial action.
According to the American Academy of Pediatrics (AAP), more than 50% of children will engage in some type of sexual behavior before their 13th birthday, and all children involved in such activity need assistance and guidance from parents, schools, and healthcare professionals. The AAP distinguishes between normal and abnormal sexual behaviors, as follows:
Normal and common behaviors include:
Touching their own genitals and masturbating
Viewing or touching a peer or new sibling
Showing genitals to peers, standing or sitting too close to other children, and trying to view peer or adult nudity
Behaviors that are infrequent, distractible, and not excessive
Abnormal behaviors include:
Any type of sexual behaviors that involve children aged four or more years apart
Asking other children and adults to engage in sexual acts
Inserting objects into genitals, imitating intercourse, or touching animal genitals
A variety of sexual behaviors displayed on a daily basis and that are disruptive to others
Sexual behaviors that result in emotional or physical pain
Sexual behaviors associated with other physically aggressive behaviors
Sexual behaviors that involved coercion
Sexual behaviors that are persistent and resistant to distraction of the child
Appropriate Responses to Allegations of Peer-on-Peer Sexual Behaviors and Touching
The U.S. Department of Education Office of Civil Rights (OCR) publishes guidelines for the practical application of Title IX requirements in educational settings. These guidelines include information for school districts about the need for appropriate grievance procedures, policies, staff training, and a Title IX coordinator, as well as state and local requirements for mandatory reporting. OCR recognizes that not all behavior with sexual connotations constitutes sexual harassment. According to OCR guidance, a kindergarten student kissing another student on the cheek would not rise to the level of sexual abuse and/or harassment. However, abnormal sexual acts, such as digital penetration, would be considered peer-on-peer sexual abuse and/or harassment.
OCR’s 2001 Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties clearly indicates that schools should consider common sense in their response to allegations of sexual harassment. In determining whether an act of alleged harassment is actionable, schools should consider the circumstances, expectations, and relationships. In a 2017 Question & Answer document regarding sexual misconduct, OCR indicated that a school must take action when it knows or reasonably should have known of an incident of sexual misconduct. Appropriate responses to an allegation of inappropriate peer-on-peer touching include:
Immediately investigate the allegation. Liability issues arise when school personnel knew or should have known of inappropriate sexual behavior but were indifferent to that information. Parents of the students involved should be contacted and informed of the incident and about the school’s response. Closer supervision of the students, such as not allowing children to use the bathroom at the same time during class, lunch, and recess, should occur to prevent future incidents.
If the initial investigation reveals that the behavior was abnormal, hurtful, violent, or abusive, the school should notify the appropriate authorities (in states, often called Child Protective Services or the Department of Social Services, or in some parts of Canada, Children’s Aid Societies). State or provincial authorities may or may not investigate based on the initial information provided to them. If conducted, an investigation will also determine whether the activity is indicative of a child’s home environment being abusive and take action to address it. It is good practice to document the contact with the police and/or state or provincial agency.
The school’s Title IX coordinator should be notified and the school should initiate a formal Title IX investigation. The Title IX investigator should consider the age of the students and the severity of the alleged inappropriate event. For an incident found to not rise to the level of sexual harassment and/or abuse, the investigator should recommend remedial action, including additional training to students on appropriate and inappropriate touching and sexual behaviors. School districts are required to conduct and conclude their own investigation, regardless of whether police or state or provincial authorities conduct a separate investigation.
Implement a plan to address the educational, social, and behavioral needs of all students or remedial action, such as counseling, age-appropriate punitive consequences, a behavior-modification plan, increased supervision, separation of the children involved, or in extreme cases, an alternative placement to provide services not available in the local school.
Assess the school’s overall climate and the need for additional training of staff and students to prevent future incidents.
Ensure that, at all times, all students are appropriately supervised according to their needs and developmental stages.
Schools have a higher standard of care for students with disabilities. Students with disabilities may have difficulty identifying sexual abuse or reporting instances of inappropriate touching. Some may not realize how their own behaviors affect others. As determined by their Individualized Education Plan (IEP), these children may need extra supervision, such as a one-to-one aide. Extra or precautionary supervision may be needed to ensure that a student is not placed in a situation or area, such as in a secluded area, bathroom, or back of a school bus, in which another child may take advantage of the student’s vulnerability.
Students with disabilities may require extra assistance by trained psychologists or similar professionals in helping them identify what occurred and with whom. Those with speech and language impairments may require assistance with describing an incident through drawings and pictures. Students with disabilities who have been sexually abused may require specialized training to teach them what is appropriate and not appropriate touching.
Schools, including public, private, and charter K-12 schools, and colleges and universities, have a responsibility to protect students from physical and emotional harm. Harm that creates a climate of fear can interfere with a student’s education, leading to a range of outcomes from failing courses to, in the worst case, suicide. Properly identifying, investigating, and handling school bullying, harassment, and intimidation claims can help school administrators protect children and avoid costly litigation.
However, not every action committed at school rises to the level of school bullying. Students engaging in physical or verbal disagreements may be in “conflict”. Conflict generally does not involve an imbalance of power or repetitive behavior. Determining whether claims of “bullying” are actually school bullying or conflict is important for both school administrators and parents to understand.
All 50 states, the District of Columbia, Puerto Rico and other territories, and Canada have enacted anti-bullying laws that affect schools. Most states also have a separate provision for cyberbullying or online harassment. Some, like the HIB law in New Jersey, are comprehensive, while others, like that in Montana, simply state that bullying is not allowed. School officials are often left with little or misleading information on exactly how to implement the regulations of the law and what exactly constitutes school bullying. In addition, some actions, such as students fighting with one another, may not be addressed in the bullying law. Therefore, parents and educators struggle with how to decide when an incident is bullying or a conflict between students.
Two students who are friends engaging in an argument over who their favorite singer is might be labeled as conflict. However, if one of the students tells her friends not to be friends with the other anymore and those friends demean the student on social media, an imbalance of power and a hostile school environment have been created. If the student who has been demeaned reports this information to a teacher, counselor, or administrator, and if that adult fails to intervene to stop the behavior, it can be argued that the school breached the professional standard of care and may be liable for damages.
According to the National Center for Education Statistics, 28% of students in grades 6–12 experienced school bullying. The media have certainly covered bullying in schools, especially cases that have resulted in suicide or school shootings. But it is unlikely that all of these cases involved bullying, and there is still confusion regarding bullying and conflict. Both require follow-up and proper response by the school.
What is school bullying?
Bullyingis generally defined as an intentional act by an individual or a group of people that is meant to humiliate or harm a student physically and/or emotionally. Bullying is characterized by a real or perceived imbalance of power that makes it difficult for the target of the bullying to stop the behavior. Although bullying may be a repeated behavior, it can also be a one-time event. Schools may look to see if the bullying substantially interfered with the student’s education. Bullying can also be directed against protected classes, such as gender, sex, race, age, disability, color, creed, national origin, religion, or genetic information, and in these cases, when a school fails to respond appropriately, it may be violating civil rights laws. Other issues arise if the bullying case involved special education students, who may or may not have understood the effects of their actions on, or by, another student.
New Jersey, which has one of the toughest laws in the United States, defines HIB in the context of school-sponsored activities as any gesture, any written, verbal, or physical act, or any electronic communication on or off school grounds that can be reasonably perceived as motivated by a distinguishing characteristic (such as a protected class). Any such actions that may violate a student’s rights, cause physical or emotional harm to a student, damage to the student’s property, or fear of the same, are demeaning to a student or group, or that create a hostile educational environment, may be considered HIB.
Often, when a student is injured, experiences emotional distress, acts to hurt him or herself, or even commits suicide, litigation is initiated against the school. The plaintiff’s attorney, through an expert in school administration, student behavior, and bullying, must demonstrate that there was a duty to protect students from bullying; that the school, through its administration and/or other employees, breached that duty; and that, as a result, the student suffered harm. Reviewing the alleged and/or actual interactions between the plaintiff and others in the school can reveal that those actions were not actually bullying and, therefore, would not fall under the standard of care. The question to be reviewed is whether these actions were, in fact, incidents of usual and typical student conflict that would be dealt with under the student code of conduct.
What is student conflict?
Conflict is a disagreement or argument in which both sides express their views. Conflicts can include students calling each other names, as long as the name calling is not based on a distinguishing characteristic. One student kicking another student’s chair because the second student asked the teacher if she was going to assign homework that night might not rise to the level of bullying. However, if the student kicks the chair because the other student is of a different color or ancestry, or the chair kicking is part of an ongoing harassment and racial-name calling, then the incident should be investigated as a bullying incident. Two students engaging in a physical altercation related to a perception that a student was trying to date the other student’s boyfriend/girlfriend may be a conflict. If the physical altercation involves the sexual orientation of a student, the incident should be investigated as bullying.
School Bullying and Conflict Resolution Professional Standard of Care
Professional standards of care require all incidents of conflict or HIB to be fully investigated and remedied as appropriate. Conflicts such as an argument over who is first in line can be dealt with through a teacher-moderated discussion between the students involved. A student’s use of racial slurs against another student, however, might be indicative of a more pervasive and potentially dangerous situation that requires a change in the culture and/or climate of the school.
Conflicts can be identified with specific consequences in student and parent handbooks. School administrators can investigate the incident, assign consequences such as detention or in-school suspension, and even consider bringing the students involved in the conflict together to mediate a resolution.
When there is an imbalance of power, however, as with HIB, bringing together the target of the HIB and the student exhibiting bullying behavior can cause the targeted student to re-experience the pain, fear, and feeling of helplessness. HIB may require ongoing counseling for both students, although separately, as well as a review of the character education curricula offered in the school. School administrators can administer surveys to students, parents, and staff asking for feedback on their perception of the school being a safe learning environment with a culture of respect for all students.
Bullying may also trigger specific reporting requirements to the parent, student, staff, and state. For instance, both Washington State and New Jersey require school districts to appoint a compliance officer or a director of HIB, have a staff member whose responsibilities include investigating reports of HIB, notify parents whose children are involved in an HIB investigation, ensure staff is properly trained, and ensure that notification of HIB policies and procedures are posted in student handbooks and on district and school websites.
A successful defense of a lawsuit involving bullying and the claim a school failed to adhere to state law standards might rest on the definition of bullying and conflict. If the incidents claimed to be bullying are determined to be conflict, it may change the consequences of review by the court.
Parents send their children to school expecting that their kids will be safe. The parents trust that the school’s staff will act in their place and look out for their children’s welfare in the same way they would. The presence of security guards, school police, or resource officers at the school may even strengthen their trust, but this can be a false sense of safety. Just because guards and school police officers wear a uniform does not always mean additional protection for students. Reviewing and assessing the potential for harm to students and others on school grounds and at school-sponsored events requires careful consideration and proactive initiative to keep students safe, even when the presence of a security guard or school police officer may provide a veneer of safety. Inadequately screening, training, and supervising security guards and school police officers; failing to provide guards and officers with clear instructions for handling special circumstances known to the school; and inappropriately delegating the responsibility for keeping children safe can all be linked to student injury or death.
If the school hires its own security or police staff, it must conduct the required background checks to determine whether the person is someone the school would want to be around children. The school also has a responsibility for adequately training the person to understand students of all types, communicate effectively with students, and de-escalate potentially dangerous situations. If the school agrees to use the services of a school resource officer or a school police officer from a local police department, it should conduct a background check and review the department’s training of the officer to determine whether it is at least comparable to what the school would provide.
Whether the school police or security officer is hired directly by the school or placed by an outside entity, the school is always responsible for supervising that person and for overseeing their relationship with students. Teachers, principals, counselors, and other school staff are most familiar with the school’s rules, students, and culture, and within these contexts, they are responsible for exercising diligence to protect students’ safety. And while the same responsibility extends to the school police officer, it is never prudent for a school to pass off this responsibility to anyone who is not carefully screened, appropriately trained, or supervised. Any of these mistakes can place students at risk of harm and the school at risk of costly litigation.
Failure to Train, Screen, and Supervise School Police and Security Guards
Unfortunately, there are many examples to demonstrate that when guards and school police officers are not properly screened, trained, and supervised, their presence may be ineffective — and possibly even harmful.
In one instance, a school police department assigned an officer to a junior high school as a school resource officer. The school did not inquire about the officer’s background, assuming that because he was assigned by the police department, the officer was trustworthy. This, coupled with the school’s failure to supervise him adequately, emboldened him to commit sexual assault on a student. After the school police officer was arrested, it was brought to light that he had been arrested previously for inappropriate sexual behavior with a minor while on duty before being hired as a police officer. The police department was aware of this, as the information was available both publicly and as part of a regular background check, which the school had failed to perform. If the school had properly screened the officer and conducted the proper background checks, it likely would not have allowed him near students and the abuse would have never occurred.
Following last February’s tragic shooting at Marjory Stoneman Douglas High School in Florida, it was revealed that the officer stayed away from the area of the shooting and never attempted to go inside the building to confront the gunman and protect the students. This raised questions about whether the officer was appropriately trained. Lawsuits have been filed against the Broward County Sheriff’s Office, which assigned the school police officer to the school, and also against the Broward County Public Schools superintendent, who is alleged to have placed students and teachers in harm’s way. A finding of inadequate or no training on the part of the school, or inadequate oversight of the training provided by the sheriff’s office, may result in liability for the district.
Each school has its own unique safety concerns, and in these situations, the level of precaution required is commensurate with the degree of inherent danger. When a car struck a student who crossed a street to attend a school-sponsored event on school grounds, the student’s attorney claimed the student was injured because the school was negligent in providing the level of safety required for the event. The person who supervised the school security guard failed to make it clear to the guard that during the Saturday program, the guard was to monitor the traffic. There was a location where students, parents, and others crossed the street from the school to go to the field where the events were taking place. Although it was generally understood that this was a location where cars might not always stop, the supervisor never directed the security guard to this location. Despite the known inherent danger at that location, the school failed to provide security commensurate with that danger. Instead, the security guard was patrolling inside of the school building.
Failure to Address Behavior Challenges
On the subject of training security guards and resource officers about a school’s specific safety concerns, students with known behavior issues merit special attention.
Guards and school police officers who are in schools are in the presence of students all day and, at times, during evening and sports events. They develop relationships with students and often need to correct a student’s behavior. To do this effectively, security and school police personnel may require specialized training to communicate and engage with some students, particularly those who are developmentally challenged. Communicating effectively with such a student differs from communicating with a student who is not developmentally challenged. If a student with a behavior disorder becomes involved in a confrontation with an officer who does not know how to interact with the student, a potentially volatile situation might only get worse.
Two examples illustrate this point. In one, a junior high school student with known behavior challenges was confronted by a school security guard because he was in the hallway without a pass. The guard confronted the student in a way that was not appropriate and escalated the situation. An argument ensued, the student ran down the hallway, and the security guard chased after him. At the end of the hallway, the student ran into a closed glass door, sustaining serious injuries. The security guard had not been informed of the student’s behavior issues and was not trained in how to communicate effectively with the student or others like him. In another case, a student with a behavior disorder entered the office of the school police officer, and when he was ordered to leave, he refused. The officer was not informed of the student’s disability and tendency to be stubborn. The officer, who said he felt threatened by the student, shot him several times. In both of these examples, the school was found liable for its failure to properly train its officers.
In my experience as an expert witness in education administration and school safety, most training of school security guards and resource officers addresses little about students with disabilities and others whom the school recognizes as being challenging. Teachers, administrators, and other professional school staff receive such training in their certification programs and often through inservices throughout their career. Everyone who interacts with students on a regular basis should be required to participate in educational programs and training that address student behavior, why some students behave in certain ways, and when conflicts arise, how to intervene effectively to keep students safe.
Failure to Uphold the School’s Duty to Supervise Students and Keep Them Safe
Schools generally do not take security guards or school police or resource officers with them to off-campus events. In these situations, the responsibility for supervising students rests with the teachers and other chaperones. However, there have been circumstances in which staff and chaperones relinquished that responsibility to others, placing students in danger of harm.
In one example, a school took students to participate in a national science competition. The students stayed overnight in a hotel operated by a major chain. The school contacted the hotel ahead of time, and the hotel hired a private security guard to be on the grounds and in the building while the students were there. The chaperones on this trip were aware of this arrangement and relied on the security guard to supervise the students, to make sure they were in their rooms at curfew, and to ensure that they did not disturb other guests. Relying on the security guard to supervise the students, the chaperones went to sleep and left him in charge. None of the teachers checked on the students during the night and were unaware until morning that the security guard had entered the room of one of the students and raped him. The teachers inappropriately delegated supervision of their students to the security officer — essentially abandoning the students when they had a responsibility to supervise them and keep them safe.
In another case involving an overnight class trip, teachers trusted that the hotel security guard would keep students out of the swimming pool. Before the teachers went to bed, no one walked the area to ensure that the students were complying with the no-swimming rule, that they met curfew, and that they were in their rooms. Some of the students were not able to swim, but the school never asked them about that before the trip — even though it knew there was an indoor pool that was not protected by a lifeguard. When the teachers emerged from their rooms in the morning, they discovered that two students went into the pool in the early morning, and one who was not able to swim had drowned. Reliance on the hotel security guard and the teachers’ failure to supervise contributed to the drowning.
In the above examples, having security guards and school police or resource officers onsite may not have been helpful at all without proper care and supervision by the school. When engaged on cases involving issues of student safety and security, our team of experts carefully reviews the available information and testimony and conducts an analysis on the appropriateness of the school’s policies, procedures, hiring, supervision, and student safeguards in order to determine whether the school’s actions were reasonable and met the professional standard of care and practices within the field of education administration and supervision.
Statistically, it’s safer to transport children to and from school by school bus than by car, according to the National Highway Traffic Safety Association. But accidents and other bus-related incidents that result in student injury and negligence are frequently causes for litigation and claims regarding negligent hiring of school bus drivers who end up harming students. Leaving students on the bus when it arrives at school, sexual abuse of students by the bus driver, bus aide, or other students, and injuries caused by student misbehavior are just a few situations that might result in liability for a school district or contracted private bus company.
The safety of children on school buses is significantly compromised when school districts or school bus companies hire and retain bus drivers who have a troublesome driving history or a criminal record. The industry shortage of drivers can cause schools and private school bus companies to consider hiring drivers who might not measure up to the highest standards. The dangers of negligent hiring of driver with a poor driving record came to light recently when a New Jersey school bus driver with numerous speeding tickets and multiple license suspensions allegedly attempted to make an illegal U-turn on an interstate highway and collided with a truck, killing a teacher and student on the bus. The driver was charged with vehicular homicide.
Negligent hiring, training, and supervision of a school bus driver represent another potential set of harms to students and liability for a school or bus company. In one case for which our firm provided expert witness services, a bus driver unilaterally changed his assigned route and student pick-up times so he could spend unsupervised time in a remote location with a young student, whom he sexually abused. Other examples include students injured or harmed by other students and multiple accounts of students, some with special needs, being left on a bus when it arrived at school or at the end of the day when the bus returned to the bus garage.
Duty to Keep Students Safe Extends to School Bus Drivers
Public schools have a responsibility to protect their students from harm. This is a widely recognized professional standard in the field that applies when students are in school, on school grounds, and on buses that transport them to and from school and on class trips. Regardless of whether the school hires its own drivers or contracts with a private school bus company, the school must ensure that drivers are reliable persons of good character who can be trusted around children. All states require that bus drivers submit to criminal background checks, however, the professional standard of care requires that schools and bus companies take additional steps to screen the background of their drivers in order to protect their students. States also require that schools review the driving records of potential school bus drivers and, one would think, schools would eliminate applications by those whose record shows a history of violations.
However, these methods are not always foolproof. It is my experience as an education administration expert witness that there are gaps in the process, such as not contacting prior employers and not carefully checking criminal or arrest histories. When a school breaches the professional standard of care by failing to take appropriate steps to hire, supervise, train, and discipline school bus drivers, it may face costly litigation when a student is injured as a result.
Appropriate Hiring, Training, and Supervision of School Bus Drivers
In one of my previous articles, I covered how the school’s duty to protect is non-delegable and how the school may be liable for the negligence of a contracted private bus company if it does not develop a reasonably comprehensive contract with the bus company and monitor its compliance with the contract. One of the most important steps a school can take to help secure students’ safety is to specify the responsibilities of both entities in the contract and ensure that the bus company is upholding its obligations. The contract often becomes paramount when determinations are made about each party’s specific responsibilities and whether any breach of the contract was a contributing factor in the harm of a student. School districts that own their own school buses and directly hire drivers can protect their students from harm by utilizing a comprehensive system for hiring, training, and supervising drivers.
Employment applications and interviews are only the minimal steps for obtaining good and trustworthy drivers. For example, it may not be a legal requirement to contact former employers listed on an application, but best practice and the reasonable standard of professional care dictate that the school or private bus company should do this and ask such questions as: “Would you hire this person again?” “Was he or she ever reported as driving in an unsafe manner?” “How was his or her relationship with the students on the bus?” The answers may provide an opportunity for the school or bus company to ask follow-up questions to obtain more information. Similarly, though an applicant may meet the legal requirement of passing a criminal background check, additional information might cause the school or bus company to consider hiring a different driver.
Any red flag that materializes during this process is a warning sign. The school or bus company should be careful not to place itself in a vulnerable position that might end up in litigation over an accident, sexual abuse, or other event that could have been avoided had a more comprehensive hiring process been in place.
A school or a private bus company that hires a driver is responsible for training the driver on its policies. These policies may require that a driver stay on his assigned route, does not let students off at unassigned stops, or that he walk to the back of the bus to assure that all students are off when they are supposed to be. A policy may require that drivers be trained in how to detect sexual abuse or report suspicions of child abuse and sexual abuse, know staff protocols for handling bullying, or make sure the surveillance camera is operational. Each state requires drivers to participate in safety training that covers bus evacuation in an emergency. Training becomes an issue of major concern when one of these systems fails. If there is a claim of negligent training because the video camera was not checked at the beginning of the route and a bus aide — knowing the camera wasn’t working — sexually assaulted a student, the question becomes, “Did the school or private bus company provide appropriate and adequate training and oversight necessary to reasonably protect students from harm?”
Many of the transportation-related case assignments our firm has worked on, for both plaintiff and defendant attorneys, address whether or not the school or private bus company adequately supervised its drivers to assure that they were complying with policies and procedures. In the example of the bus driver who changed his route and pick-up time, my review indicated that the driver was provided with the route to be driven, the exact pick-up times for students, and the names of the students at each stop. However, no one from the private school bus company ever supervised the driver or monitored him to assure he was complying with these requirements. With no one watching him, he changed the pick-up time for certain students so that the target of his assault would be first on the bus and alone. If he had been adequately supervised, it is less likely he would have felt that he could do this on his own.
Pay Attention to Details to Avoid Negligent Hiring, Training, and Monitoring School Bus Drivers
Whether through a contract with a private bus company or through hiring, training, and supervising their own bus drivers, schools may avoid liability by:
Conducting a comprehensive hiring process that goes beyond the legally required background check. Find out as much as possible about the applicant. Ask the question: “Is this person, based on his or her driving record and what prior employers and personal references say, the type of person you would trust with children?”
Developing and providing training that goes beyond required safety instruction to equip drivers and bus aides with the information and tools necessary to adequately supervise and protect students from harm. Ask the question: “If a bus driver observes certain concerning behaviors on his or her bus, will the driver recognize it as bullying or sexual harassment — and how will the driver respond?”
Supervising and monitoring drivers and private bus companies’ activities to assure that school and company policies are followed and drivers comply with the rules. Ask the question: “How would I know if the driver changes the assigned route or drops off a student at an unassigned location?”
Schools are expected to protect students from harm from the moment they arrive at the bus stop in the morning to the time the bus drops them off at the end of the day. Meeting this expectation means tending to details in hiring, contracting, and actions. Go beyond minimum hiring requirements by contacting previous employers and references and asking pertinent questions. Ensure that contracts between schools and contracted bus companies unambiguously delineate the responsibilities of each and specify which person is accountable for what. Focus on the safety of students through clear policies that establish standards for handling and reporting inappropriate student behavior on buses, protocols for the use and monitoring of safety devices, and responsibilities and boundaries for aides who assist children with special needs. Develop procedures that identify specific individuals for carrying out these policies, train school staff and contractors in these procedures, and create a mechanism for ensuring that the responsible person follows through. These steps will not only reduce the likelihood of student injury, but help the school and bus company to defend lawsuits alleging negligent hiring and supervision of school bus drivers and other employees.