Shorter school day not a solution to bus transportation challenges

While staggered arrival and departure times for students with disabilities might be acceptable in the return to school this fall, administrators must be aware that such an arrangement could affect a student's right to FAPE.
By: | July 14, 2020
Photo by Kentaro Toma on UnsplashPhoto by Kentaro Toma on Unsplash

Districts that stagger students’ arrival and departure times in the 2020-21 school year to promote social distancing and inhibit the spread of COVID-19 may need to watch how those schedules affect students with disabilities.

It’s well established that a district can’t shorten the school day for students with disabilities solely for transportation purposes. For example, a district may not require students in a special day class to board their buses 15 minutes before the end of the school day just so they can avoid crowds in the hallways. See, e.g., Bay Village (OH) City Sch. Dist., 65 IDELR 275 (OCR 2014). However, most of these cases involving shortened school days were decided long before the novel coronavirus forced districts to adopt new transportation safety protocols. This raises the question: How concerned should transportation directors be about making sure students with disabilities don’t end up with shortened school days as a result of modified busing practices?

David Garner, an attorney with Osborn Maledon P.A. in Phoenix, believes transportation directors should be somewhat concerned about this issue. Differences in the length of the school day for students with disabilities and their nondisabled peers can amount to disability discrimination under Section 504.

“That said, if the choice is between health and safety of the student [and] checking a time slot on a timesheet, concerns for safety should take precedence,” Garner says. He observes that staggering arrival and departure times—a practice recommended by the Centers for Disease Control and Prevention—may be the best option for some districts.

Ensure provision of services

Staggered arrival and departure times for students with disabilities might be acceptable in some circumstances, says Laura Anthony, a partner with Bricker & Eckler in Columbus, Ohio. Still, administrators need to be aware of how such an arrangement might affect a student’s right to FAPE. A  district could find itself liable for compensatory education if students with disabilities do not receive instruction or necessary services because of a shortened school day.

“However, if the school is staggering its entire schedule because of social distancing or transportation needs, and the students with disabilities get all of their services, just on a different schedule, this might not open the door to compensatory education,” Anthony says.

Communicate with parents

Garner believes the best way to avoid disputes over transportation services is to communicate clearly and openly with parents. Most people understand the COVID-19 pandemic is forcing people to “think outside the box” and work together to find the best solutions, he notes.

What happens if a district’s efforts to collaborate with the parents of a student with a disability break down? In such instances, Garner says, the district should strive to do what’s best for the student—”even if that may mean drawing slightly outside the lines.”

Amy E. Slater, Esq., covers special education legal issues for LRP Publications, publisher of DA.