Chesterton Tribune

Attorney General: Public school bus fees are unconstitutional

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By Timothy Cox,

Franklin College News Service

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 additional child.

“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 the situation.

“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.)




Posted 11/11/2011