INDIANAPOLIS – Indiana Attorney General Greg Zoeller said in an official but
non-binding opinion Thursday that it is unconstitutional for districts to
require students to pay fees for bus transportation – even if the schools
outsource the service to an outside group or company.
Zoeller also asked the Indiana State Board of Accounts to review just such a
situation in the Franklin Township Schools in Indianapolis.
Before the current school year started, the district contracted its bus
service to a nonprofit agency, which is charging parents $47.50 per month
for the first child riding the bus to school and $40.50 per month for each
“Under Indiana’s constitution and statutes, a public school corporation
cannot charge fees for students to ride a bus to school to receive the
public education to which they are entitled,” Zoeller said in a statement
Thursday. “The school cannot charge bus fees directly, and they cannot
charge bus fees indirectly by outsourcing the driving to a third party.”
Zoeller said if the State Board of Accounts also finds the arrangement is
illegal, his office could seek refunds for parents.
In a statement regarding Zoeller’s opinion, Franklin Township Schools
officials said, “We are in the process of reviewing with our attorneys after
careful consideration of our options. The administration and the board of
education will determine our course of action.”
The district implemented the new bus system and fees in reaction to what
Superintendent Walter Bourke has called a funding crisis. Twice, the
district has asked taxpayers to authorize more funding for the schools but
voters rejected the requests.
Zoeller’s opinion is non-binding, which means it can’t be used to force
action from a school district. Attorney general opinions are meant to serve
as guides for state officials contemplating legal decisions.
Two lawmakers who represent the district – state Sen. Pat Miller,
R-Indianapolis, and Rep. Mike Speedy, R-Indianapolis – had asked Zoeller for
the opinion. They were seeking information about the Franklin Township
Schools’ arrangement as well as guidance for possible legislation to address
“I anticipated this kind of a response because of the (Central Indiana)
Education Service Center being the entity providing the transportation and
being paid,” said Miller.
The senator expects legislation will be filed but does not know what the
legislation will consist of. Her concern is for Franklin Township Schools.
“Franklin Township has some enormous debt, and I’m looking for some ways to
help pay down their debt,” she said.
Previously the attorney general issued a separate opinion in July 2010
finding it also would be unconstitutional for a school corporation to charge
bus fees directly.
While Indiana statute would allow parents independently to contract jointly
with bus drivers to provide transportation if the school corporation does
not, such a contract would then need a school board’s approval to allow
access to school grounds, comply with the school schedule and follow safety
and insurance requirements, Zoeller said.
That did not happen in the Franklin Township situation. The school board
contracted with the CIESC first and then imposed the arrangement on parents.
That is also unlawful, the opinion said.
“It is easy to understand how financial constraints might lead school
corporations to difficult funding choices, which in turn have unintended
consequences,” Zoeller said. “However, the option chosen by Franklin
Township Schools cannot be justified and should be discontinued and
rectified to ensure the provision of a general and uniform common school
system equally open to all.”
Typically the Attorney General’s Office does not issue legal opinions while
litigation is ongoing, and a private lawsuit was filed against the Franklin
Township Schools by a parent on Nov. 2 challenging the school’s
transportation arrangement. In this situation, Speedy and Miller had already
requested an opinion for purposes of possible legislation and the opinion
was already being drafted before the lawsuit was filed.
Zoeller said he is issuing the opinion as an exception to the rule.
“Due to the constitutional question presented and our prior opinion, we
believe it is appropriate to issue this new opinion to provide useful
guidance to our legislative clients and the judiciary who may have an
interest in the State’s view,” Zoeller said.
(Editor Lesley Weidenbener contributed to this story.)