Bell v. Wilkinsburg Sch. Dist.

Does 24 P.S. § 17-1726-A apply equally to public school students regardless of whether the students are enrolled in a public charter school or in a traditional public school?

Bell v. Wilkinsburg Sch. Dist., 298 A.3d 1140 (Pa. Cmwlth. 2024) (en banc), allocatur granted July 31, 2024, appeal docket 23 WAP 2024

The Pennsylvania Supreme Court will consider, in a matter of first impression, whether 24 P.S. § 17-1726-A permits unequal treatment of school-aged students in the Commonwealth depending on whether the students are enrolled in a public charter school or in a traditional public school. 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.

Historically, the Wilkinsburg School District (the District) provided school bus transportation to all resident students, including those attending charter schools outside the District’s boundaries. In 2018, aiming to reduce costs, the District replaced school bus services for charter school students with free passes for public transportation provided by the Allegheny County Port Authority (PAT). The 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.” Slip op. at 2. The District did not seek prior approval from the Pennsylvania Department of Education (PDE) before implementing this change. Betty Bell, a guardian of affected students, along with Propel Charter Schools (collectively, the Appellants), filed a lawsuit alleging that (1) the District violated Section 1726-A(a) of the Charter School Law (CSL) by not providing charter school students with the same mode of transportation as district school students; (2) the District breached Sections 23.2 and 23.4 of the State Board of Education’s regulations by failing to obtain PDE approval before altering the transportation method; and (3) the use of public transit for student transportation did not meet the safety standards outlined in Section 1362 of the Public School Code. The District contended that providing free public transit passes fulfilled its obligation to offer “free transportation” under the CSL and that prior PDE approval was not required for this change. The trial court ruled in favor of the District, concluding that the statutory provisions required only that the District provide access to free transportation, ensuring students did not have to walk over one and one-half miles or on hazardous streets. In a 2021 decision, the Commonwealth Court reversed the trial court’s decision, interpreting Section 23.2 of the State Board’s regulations to require prior PDE approval before implementing changes to transportation plans and concluding that the District violated this regulation by not obtaining such approval. The Pennsylvania Supreme Court in 2022 reversed the Commonwealth Court’s decision, held that the District was not required to obtain prior PDE approval before changing the mode of transportation, and remanded the case to the Commonwealth Court for consideration of the Appellants’ other issues. Commonwealth Court summarized the Charter School’s arguments as follows:

Charter Schools assert that public transportation is less safe than school buses. They argue that some elementary students have to walk as far as two miles to get to a public bus stop and that some even have to transfer buses. They insist that the trial court’s decision treats charter school students as second-class citizens in violation of the requirement that they are equal to School District students.

The original Section 1726 of the Charter School Law provided that charter school students “shall be provided transportation to the charter school on the same terms and conditions as transportation is provided to [district] students.” Former 24 P.S. § 17-1726. That provision was amended several times in succeeding years. The amendments have left school district and charter school students on parallel footing only in Philadelphia, the state’s only first-class district, under the current Section 1726-A(a.1), 24 P.S. § 17-1726-A(a.1). Charter Schools posit that this downgrading of the status of charter school students was unwitting on the part of the legislature and that there is no indication that the legislature meant to reduce the rights of charter students as compared to those of school district students.

Charter Schools cite Mosaica Academy Charter v. Department of Education, 813 A.2d 813 (Pa. 2002), which concerned Philadelphia and was decided under the then-current version of Section 1726-A, which referenced Section 1361. In Mosaica, our Supreme Court concluded that although charter schools were public schools for most purposes, charter schools should receive the benefits afforded to nonpublic schools with regard to transportation. Accordingly, in Mosaica, the Philadelphia School District was required to provide transportation of Philadelphia resident students to a charter school outside the district’s geographical boundaries.

In 2006, amendments to Section 1726-A of the Charter School Law added consideration of walking distances by providing that transportation is not required for elementary students living within one and one-half miles of the closest public highway to the charter school, unless the road or traffic conditions are such that walking constitutes a safety hazard to students. 24 P.S. § 17-1726-A. However, if the school district provides transportation to its public schools for elementary students “residing within one and one-half [ ] miles or for secondary students residing within two [ ] miles of the nearest public highway under nonhazardous conditions, transportation shall also be provided to charter schools under the same conditions.” Id. Charter Schools contend that the trial court erred in finding the “under the same conditions” language refers only to circumstances in which road conditions make walking unsafe for students, because Section 1726-A already speaks of hazardous conditions in preceding phrases. According to Charter Schools, “under the same conditions” means that if public schools bus district students when road conditions are unsafe for walking, then they must also bus charter students when road conditions are unsafe.⁴ Otherwise the “under the same conditions” language in Section 1726-A would be mere surplusage.

Charter Schools observe that in Watts v. Manheim Township School District, 121 A.3d 964 (Pa. 2015), our Supreme Court held that no student of any age should have to walk farther than one and one-half miles to a bus stop or to school. Id. at 973 n.14. Further, Charter Schools posit that the roads on the students’ walking routes must be certified by the Pennsylvania Department of Transportation (DOT) as not hazardous for children walking to school. Id. at 970 n.7 (citing Section 1362 of the School Code). According to Charter Schools, the School District here presented no evidence that DOT was asked to conduct safety inspections of any routes charter students would have to walk to public transit bus stops; and because the School District did not ask, DOT never had the opportunity to certify whether hazardous conditions exist on the routes to public bus stops. In any event, Charter Schools insist they presented ample evidence that the routes are unsafe and/or too long (over 1.5 miles) for students.

Charter Schools suggest the School District is cavalier in asserting that the need for grade school students to transfer buses, take long rides, or suffer other unpleasant conditions to get to and from school is irrelevant so long as the students are offered free transportation and do not have to walk over one and one-half miles. Charter Schools seek to distinguish Chipman v. Avon Grove School District, 841 A.2d 1098 (Pa. Cmwlth. 2004), on which the School District relies. Charter Schools assert that the issue in Chipman was whether ride length and transfers alone were enough to show a violation of Section 1361 of the School Code. In that case, however, the student was still on a school bus, but here, there are safety concerns associated with public transportation.

Charter Schools also insist they established at trial that some students must walk over one and one-half miles, some elementary-age children must take three buses to stay under that maximum walking distance, and other children must leave so early that it is still dark outside. Charter Schools argue this is both unpleasant and inequitable.

Slip op. at 6-9.

Rejecting the Charter School’s arguments, the Commonwealth Court affirmed the trial court’s decision in favor of the District. The court found the Charter Schools’ reliance on Mosaica misplaced because that case “dealt with a prior version of Section 1726-A, which referenced Section 1361 of the School Code; the current version does not.” Slip op. at 12. Commonwealth Court reasoned:

Because Section 1361 requires “identical provision” of travel to nonpublic and public students, Mosaica was correct for its time. But since Section 1726-A was amended in 2006 to omit its reference to Section 1361, Charter Schools cannot rely on either Section 1726-A or Mosaica to demand school bus service, as neither the current Section 1726-A nor Section 1362 requires it.

Similarly, although the version of Section 1726-A at issue in Mosaica included the original language required “transportation on the same terms and conditions,” that language was removed in 2002. Compare former 24 P.S. § 17-1726 with 24 P.S. § 17-1726-A. In 2006, the legislature amended Section 1726-A. Had the legislature wished at that time to restore the “same terms and conditions” language, it could have done so, but it did not. Instead, the legislature added only “under the same conditions,” and it did so in a sentence that specifically pertains to road conditions rather than the overall provision of travel. 24 P.S. § 17-1726-A. The trial court correctly concluded that Charter Schools’ reading of Section 1726-A would rewrite it to reinsert language that the legislature specifically removed and chose not to restore.

Slip op. at 12-13. While acknowledging the Charter Schools’ safety concerns, the court found that notwithstanding the Charter Schools’ arguments regarding legislature’s intent, “the statutory language is clear on its face, and we, like the trial court, are bound to uphold it as drafted,” reasoning that:

we must presume that the legislature considered the potential safety consequences when it amended the Charter School Law to remove, except in Philadelphia, the requirement of former Section 1726 to transport charter school students “on the same terms and conditions as … [district] students.” Former 24 P.S. § 17-1726.

Slip op. at 14.

Dissenting, Judge Wallace, joined by Judge McCullough, would “construe Sections 1361(1) and 1726-A together and conclude a school district may not provide a transportation option, such as use of a school bus, to traditional public school students while denying that option to charter school students.” Slip op. at SW-5 – SW-6. Regarding the history of the amendment to Section 1726-A, Judge Wallace observed:

Shortly before our Supreme Court decided Mosaica, the General Assembly passed an amendment to Section 1726-A. See Act of December 9, 2002, P.L. 1472, No. 187 (Act 187). The amendment removed the “same terms and conditions” language as well as the reference to Section 1361. In its place, the amendment added specific protections for students attending charter schools, similar to the ones enjoyed by nonpublic school students under Section 1361(1). The General Assembly directed, in relevant part, that school districts must provide free transportation for students attending charter schools up to 10 miles outside of the district boundaries “on such dates and periods that the charter school is in regular session.” Id. In Section 14 of Act 187, the General Assembly explained the purpose of its amendment was “to clarify the current provisions … regarding the transportation” of charter school students. Id.

The Majority now concludes that our General Assembly does not intend to provide charter school students with the same transportation options as their peers attending traditional public schools, primarily because of the language eliminated in Act 187. In other words, the Majority concludes that our General Assembly did not merely “clarify” Section 1726-A, as it said it did, but reversed course completely, stripping charter school students of the equal transportation options they once enjoyed. I cannot accept the Majority’s conclusion.

Slip op. at SW-3. Judge Wallace concluded:

Although our General Assembly removed any direct reference to Section 1361 from Section 1726-A, the two provisions remain in pari materia, and we must read them together. See T.G.A. v. Dep’t of Educ., 302 A.3d 830, 845 (Pa. Cmwlth. 2023) (en banc) (quoting 1 Pa.C.S. § 1932). Moreover, the other factors the Supreme Court considered when concluding charter schools were “akin to private schools for purposes of transportation,” remain in place. Mosaica, 813 A.2d at 822. A charter school is still defined as an “independent public school,” distinct from traditional public schools, and school districts still receive payments for transporting charter school students under a provision pertaining to nonpublic school students. Id.

The Majority’s alternative conclusion invites a host of constitutional concerns because it may result in similarly-situated public school students receiving unequal treatment or in public school students receiving demonstrably worse treatment than students attending religious schools.⁶ See, e.g., William Penn Sch. Dist. v. Pa. Dep’t of Educ., 294 A.3d 537, 946-57 (Pa. Cmwlth. 2023) (Cohn Jubelirer, P.J., single-judge op.) (recognizing public education as a fundamental right and applying strict scrutiny review in the context of an equal protection challenge); Springfield Sch. Dist., Delaware Cnty. v. Dep’t of Educ., 397 A.2d 1154, 1160-66 (Pa. 1979) (concluding Section 1361 did not violate the Establishment Clause, U.S. Const. amend. I, because, among other things, it did not have a primary effect of either advancing or inhibiting religion). Where, as here, we may interpret a statute in multiple ways, it is our duty to avoid an interpretation raising “grave and doubtful constitutional questions.” Commonwealth v. McClelland, 233 A.3d 717, 735 (Pa. 2020) (quoting Commonwealth v. Veon, 150 A.3d 435, 443 (Pa. 2016)).

Slip op. at SW-4 – SW-5.

Judge McCullough authored a separate dissenting opinion to address the issue of safety concerns, opining that:

I write separately to emphasize that, as a matter of practice, the General Assembly does not intend a result that is “absurd, impossible of execution or unreasonable.” 1 Pa. C.S. § 1922(1). Putting aside all other issues of statutory interpretation, making a five-year old take two Port Authority Transit buses to get to school, ride with complete strangers, transferring once or twice, increasing the length of her commute, and then making the child do the same thing on the way home, is at best unreasonable, and at worst absurd.

School transportation is undoubtedly an overarching part of our government’s commitment to educating school children safely. Hence, I cannot fathom that the General Assembly is more concerned with the safe education of one pupil than another.

Slip op. at PAM-1 – PAM-2.

The Pennsylvania Supreme Court granted allocatur limited to the following issue:

Whether, in a matter of first impression, the Commonwealth Court erred in interpreting 24 P.S. § 17-1726-A to permit unequal treatment of school-aged students in the Commonwealth depending on whether the students are enrolled in a public charter school or in a traditional public school?