I’ve written a book about it. I’ve given presentations about it. I’ve made it a focus of my career to teach school transportation professionals how to make a legally defensible decision. With all of that, however, I’m not sure I’ve distilled anyplace just what a legally defensible decision is. Here’s what I don’t mean: some decisions are poor decisions, but because of legal technicalities, or state governmental immunity statutes, or even poor lawyering on the part of the parent’s counsel, the school district will win. In other words you have a legal defense, but not because you did something right.
Instead, I mean a decision you can defend with a straight face because it made sense given all of the information you had at your disposal, or would have had if you’d exercised due diligence. . . . even if it didn’t turn out well. You did the best you could under all the circumstances – because your best is still limited by the fact that you’re only human – but a student was hurt, or worse.
Here’s what a defensible decision looks like:
- You had and used a process for making the decision
- It’s the product of objective reasoning with a basis you can articulate
- You can point to behavior that reasonably demonstrates your concern for the student involved
- It complies with applicable law, regulation and your own policy
- When there isn’t a big fat elephant in the room that betrays the fact that your decision could never work, or is directly contrary to anyone’s common sense, or flies in the face of the law. Basically, it passes the “straight-faced” test: you can convey it with a straight face.