Pre-Approval of School District Transportation Plans by PDE

Bell et al. v. Wilkinsburg School Dist., 252 A.3d 708 (Pa. Cmwlth. 2021) (en banc), allocatur granted Nov. 3, 2021, appeal docket 25 WAP 2021

In the years leading up to the 2018-2019 school year, Wilkinsburg School District (WSD), located in Wilkinsburg Borough, Allegheny County, provided school bus transportation to its own students and to the children who lived in the borough but attended several “Propel” charter schools in the area. Among those children was Betty Bell’s grandson, who was 10 years old when WSD decided that, starting with the 2018-2019 school year, it would no longer provide school bus transportation to the borough’s charter students. WSD would, instead, provide each charter student with a free bus pass that they could use to ride the public buses to and from school each day. WSD determined that this decision would “reduce its transportation costs and increase the rate of its transportation subsidy from the Commonwealth from 30-40% to 100% of its transportation expenditures.” Slip op. at 3.

On October 12, 2018, Bell and the local charter schools filed suit again WSD in the Court of Common Pleas of Allegheny County seeking, inter alia, an injunction to stop WSD’s implementation of its new transportation plan and a declaration that the plan was unlawful. As part of its argument, the plaintiffs asserted that 22 Pa. Code § 23.2 requires that school districts receive approval of a new student transportation plan from the Pennsylvania Department of Education (“PDE”) prior to implementing such a plan. The regulation provides: “The means of pupil transportation to and from school, whether furnished by school conveyances, private conveyances or common carriers, and contracts and agreements relating thereto, shall be subject to approval by the Department.” The trial court dismissed the complaint on June 27, 2019. The plaintiffs appealed to the Commonwealth Court.

On appeal, the Commonwealth Court considered, inter alia, the plaintiffs’ assertion that WSD violated 22 Pa. Code § 23.2 when it implemented its new bus pass plan without first receiving PDE approval. WSD argued that the regulation did not require such approval—that transportation plans are merely “subject” to PDE’s approval and that PDE “exercises this approval authority through its power to reimburse school districts for transportation costs, because a school district will only be reimbursed for its transportation costs if [PDE] approves its transportation plan.” Slip op. at 6. The en banc Commonwealth Court disagreed, interpreting the regulation as requiring pre-approval by PDE of school districts’ new transportation plans.

WSD appealed. The Pennsylvania Supreme Court granted allocatur to consider one question:

Whether, in a matter of first impression, the Commonwealth Court erred in interpreting 22 Pa. Code § 23.2 to require school districts to obtain advance approval from the Pennsylvania Department of Education (“PDE”) of pupil transportation plans and transportation services contracts, in disregard of the text of the regulation, PDE’s interpretation of that regulation and despite the fact that the PDE has not required and does not have a process for such advance approval, thus subjecting the transportation plans and transportation contracts of every school district to potential invalidation?


For more information, contact Kevin McKeon or Dennis Whitaker.