Bell v. Wilkinsburg Sch. Dist.

1

Betty Bell, an adult individual, and Propel Schools, d/b/a Propel Charter School - Homestead, Propel Charter School - Sunrise, d/b/a Propel Braddock Hills, Propel Charter School - Pitcairn, and Propel Charter School - Hazelwood, Appellants v. Wilkinsburg School District

No. 1259 C.D. 2019

Commonwealth Court of Pennsylvania

January 31, 2024

OPINION NOT REPORTED

Argued: October 11, 2023

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE CHRISTINE FIZZANO CANNON Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE LORI A DUMAS, Judge, HONORABLE STACY WALLACE, Judge.

MEMORANDUM OPINION

CHRISTINE FIZZANO CANNON, Judge

Wilkinsburg School District (School District) transports its students to and from school in school buses. However, the School District does not provide school buses to transport students who live in the School District but attend charter schools outside the School District. Instead, the School District provides those students with public transit passes, leaving even elementary charter school students to negotiate the public transit system, including transfers, on their own.

Betty Bell (Bell), an adult individual, and Propel Schools, d/b/a Propel Charter School - Homestead, Propel Charter School - Sunrise, d/b/a Propel Braddock Hills, Propel Charter School - Pitcairn, and Propel Charter School - Hazelwood (collectively, Charter Schools) appeal from an order of the Court of Common Pleas of Allegheny County (trial court) concluding that the School District's provision of public transit passes to Charter Schools' students does not violate applicable law. The trial court reasoned that the relevant statutory provisions require only that the School District provide access to free transportation, such that students do not have to walk over one and one-half miles or on hazardous streets. Upon review, we are constrained to affirm the trial court's order.

I. Background

Before the 2017-18 school year, the School District contracted to provide school bus transportation to all resident School District and charter school students in the catchment. During the summer of 2018, after a consultant study, the School District announced that it was switching to free passes on public transportation for students attending charter schools outside School District boundaries, beginning in the 2018-19 school year. The School District anticipated the switch would save some $130,000, because the School District would receive higher reimbursements for the bus passes than for school bus contracts. The School District did not hold a public meeting or seek approval from the Pennsylvania Department of Education (Department) before making this change.

Charter Schools then arranged to provide their own buses for students in kindergarten through grade five, but students in grades six and higher had to use the public transportation passes provided by the School District. It is unclear whether Charter Schools have continued to provide buses for the younger students.

Bell's grandchildren lived with her. They attended Charter Schools, and at least one of them had to use the transit passes. In October 2018, Charter Schools and Bell sued the School District seeking declaratory and injunctive relief. They asserted that the transit pass arrangement violated the Public School Code of 1949 (School Code)^[1] and the Charter School Law.^[2]

The trial court upheld the School District's provision of transit passes. The trial court concluded that the School Code and the Charter School Law allow districts to use public transportation and that any requirement to transport both kinds of students under the same conditions pertains to travel distance and safety, not the specific mode of transportation.

On appeal, this Court reversed in an opinion limited to the threshold issue of whether the School District had to obtain the Department's approval for a change in its transportation provisions. Because we concluded such approval was required, we did not reach any other issues. After granting allocatur, our Supreme Court reversed, holding that the School District did not have to seek Department approval. See Bell v. Wilkinsburg Sch. Dist., 283 A.3d 245 (Pa. 2022) The Supreme Court therefore remanded the matter to this Court for us to consider the remaining issues. Id.

II. Applicable Statutory Provisions

Section 1726-A of the Charter School Law provides, in pertinent part:

(a) Students who attend a charter school located in their school district of residence, a regional charter school of which the school district is a part or a charter school located outside district boundaries at a distance not exceeding ten (10) miles by the nearest public highway shall be provided free transportation to the charter school by their school district of residence on such dates and periods that the charter school is in regular session whether or not transportation is provided on such dates and periods to students attending schools of the district. Transportation is not required for elementary students, including kindergarten students, residing within one and one-half (1.5) miles or for secondary students residing within two (2) miles of the nearest public highway from the charter school in which the students are enrolled unless the road or traffic conditions are such that walking constitutes a hazard to the safety of the students when so certified by the Department of Transportation, except that if the school district provides transportation to the public schools of the school district for elementary students, including kindergarten students, residing within one and one-half (1.5) miles or for secondary students residing within two (2) miles of the nearest public highway under nonhazardous conditions, transportation shall also be provided to charter schools under the same conditions . . . .

. . . .

(b) In the event that the Secretary of Education determines that a school district is not providing the required transportation to students to the charter school, the Department of Education shall pay directly to the charter school funds for costs incurred in the transportation of its students . . . .

24 P.S. § 17-1726-A.

Section 1361 of the School Code provides, in pertinent part:

(1) The board of school directors in any school district may, out of the funds of the district, provide for the free transportation of any resident pupil to and from the kindergarten, elementary school, or secondary school in which he is lawfully enrolled, provided that such school is not operated for profit and is located within the district boundaries or outside the district boundaries at a distance not exceeding ten miles by the nearest public highway. . . . When provision is made by a board of school directors for the transportation of public school pupils to and from such schools . . ., the board of school directors shall also make identical provision for the free transportation of pupils who regularly attend nonpublic kindergarten, elementary and high schools not operated for profit to and from such schools . . . . Such transportation of pupils attending nonpublic schools shall be provided during regular school hours on such dates and periods that the nonpublic school not operated for profit is in regular session, according to the school calendar officially adopted by the directors of the same in accordance with provisions of law. The board of school directors shall provide such transportation whenever so required by any of the provisions of this act or of any other act of Assembly.

(2) The board of school directors in any school district may, if the board deems it to the best interest of the school district, for the purposes of transporting pupils as required or authorized by any of the provisions of this act or of any other act of the Assembly, appropriate funds for urban common carrier mass transportation purposes from current revenues to urban common carrier mass transportation authorities to assist the authorities to meet costs of operation, maintenance, capital improvements, and debt service. Said contributions shall not be subject to reimbursement by the Commonwealth of Pennsylvania.

(3)The State Board of Education shall adopt regulations, including qualifications of school bus drivers, to govern the transportation of school pupils.

24 P.S. § 13-1361.

Section 1362 of the School Code provides, in pertinent part:

The free transportation of pupils, as required or authorized by this act, or any other act, may be furnished by using either school conveyances, private conveyances, or electric railways, or other common carriers, when the total distance which any pupil must travel by the public highway to or from school, in addition to such transportation, does not exceed one and one-half (1½) miles, and when stations or other proper shelters are provided for the use of such pupils where needed, and when the highway, road, or traffic conditions are not such that walking constitutes a hazard to the safety of the child, as so certified by the Department of Transportation. The Department of Transportation shall take into account the presence of sidewalks along the highway, but such presence or lack thereof shall not be controlling and the department shall consider all relevant safety factors in making its determination as to whether or not walking constitutes a hazard to pupils. All private motor vehicles employed in transporting pupils for hire shall be adequately covered by public liability insurance in such amount as the board of school directors shall require.

24 P.S. § 13-1362.

Section 2509.3 of the School Code provides, in pertinent part:

Each school district, regardless of classification, shall be

...