Last month, the Office of Administrative Hearings, "OAH," issued a decision in which the parent partially prevailed. The case is titled: Parent on Behalf of Student v. Burlingame Elementary School District.
In this case, the boy, who primarily spoke Arabic, was eligible for special education and related services as a student with a speech and language impairment. One of the issues in the case concerned whether the school district should have provided the five-year-old boy with transportation when it offered him a special preschool placement where he could be observed during the regular school day while he was being assessed, and where he could learn English language skills.
The special school placement was not the school the boy would have attended if he were not disabled. Instead, it was the only school in the school district that offered a special education preschool program. The preschool program was two miles from the boy's school of residence. The school district offered the family no alternatives. To pick up the boy from school, his mother had to use a special ride sharing service. The family requested that the school district provide transportation for the boy, but the district failed to offer this service.
A school district must provide transportation to disabled students if it provides transportation to non-disabled students. If a school district does not provide transportation to non-disabled students, “the issue of transportation to students with disabilities must be decided on a case-by-case basis. If a [school district] determines that a disabled student needs transportation to benefit from special education, it must be provided as a related service at no cost to the student and his or her parents.” (Letter to Smith, (OSEP July 12, 1995, 23 IDELR 344 [23 LRP 3398]).)
Although the Ninth Circuit Court of Appeals has not specified criteria for determining whether a child needs transportation as a related service, other circuit courts have indicated some guidelines that are useful in evaluating this case. Relevant factors include, at least, (1) the child’s age;
(2) the distance the child must travel; (3) the nature of the area through which the child must pass; (4) the child’s access to private assistance in making the trip; and (5) the availability of other forms of public assistance in route, such as crossing guards or public transit. (Donald
B. By and Through Christine B. v. Board of Sch. Com’rs of Mobile County, Ala. (11th Cir. 1997) 117 F.3d 1371, 1375 (Donald B.).)
For the hearing, the school district argued that they were not responsible for transporting the boy to school, relying on two previous OAH decisions. In both cases, unlike in this case, the child was attending his school of residence.
The administrative law judge in this case ruled that the school district should have offered the boy transportation because the special placement was not at his school of residence, was two miles from his home and two miles from his school of residence, and he was unable to attend the special school without the related service of transportation.
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