Board of Education v. State Board of Education

Opinion

MCDONALD, J.

The principal issue in this administrative appeal is whether the defendant, the state board of education (state board),¹ properly decided that the plaintiff, the board of education of the town of Stafford (Stafford board), improperly had denied transportation to students of the St. Edward School, a private, nonprofit, parochial school, for four days when the Stafford public schools were closed. The Stafford board appealed from the state board’s decision to the Superior Court, which affirmed the decision of the state board that, pursuant to General Statutes § 10-281,² the Stafford board must provide transportation for St. Edward School students on days St. Edward School is in session. The Stafford board appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The facts are not in dispute. Saint Edward School has followed the same school calendar as the Stafford public schools since at least 1984. The Stafford board provides school bus transportation for children attending both public and private schools. Saint Edward School students ride on the same buses as the public school students and are subject to the same distance regulations as set forth by the Stafford board.

The Stafford board normally announces its public school calendar before St. Edward School, and St. Edward School generally follows the public school calendar. After releasing the 1992-93 school year calendar, the Stafford board amended it to delay the opening day of school from August 31, 1992, to September 8, 1992, due to building construction problems at several Stafford schools. Saint Edward School was scheduled to open, however, on August 31, 1992, and objected to the denial of bus transportation for its students. A temporary injunction requiring the Stafford board to provide transportation services for September 1 through September 8, 1992, was obtained in Superior Court by the parents. The Stafford board did not provide transportation for St. Edward School students on August 31, 1992, but did so for the remaining days.

In the 1993-94 school year, both the Stafford public schools and the St. Edward School planned a spring vacation for April 18 through April 22, 1994. In order to make up school days cancelled due to snow, however, St. Edward School later rescheduled classes for April 18 through April 20. The Stafford public schools remained closed for the entire spring vacation and the Stafford board denied transportation to St. Edward School students during that three day period.

Thereafter, on September 30, 1994, the parents requested a hearing, alleging a failure to provide school accommodations as required by General Statutes § 10-186³ and transportation services as required by § 10-281. At the October 25,1994 hearing, the Stafford board dismissed the complaints as moot because the dates under dispute already had passed. The parents appealed to the state board,⁴ which held a hearing before an impartial hearing board. The hearing officer found that the Stafford board is required to provide transportation services to St. Edward School students on all days when the private school is in session, regardless of whether tihe Stafford public schools axe closed. The state board issued a decision in accordance with the hearing officer’s findings.

The Stafford board makes several arguments on appeal. It claims that, in affirming the state board’s decision, the trial court ruled improperly because: (1) the underlying request for transportation was moot; (2) the state board exceeded its authority in considering the merits of the case rather than limiting its review to the mootness question; (3) the state board’s decision constituted a declaratory ruling, which it lacked the authority to issue absent compliance with the applicable statutory procedures; and (4) the plain language of § 10-281 does not support the state board’s interpretation. The Stafford board also argues that the state board’s interpretation of § 10-281 constitutes aviolation of both the first amendment to the United States constitution and article seventh of the Connecticut constitution. We disagree with these claims and, consequently, affirm the judgment of the trial court.

I

We first address the Stafford board’s argument that the trial court improperly determined that the dispute over the denial of transportation was not moot or, alternatively, that even if it was moot, it nonetheless was entitled to review under the “capable of repetition, yet evading review” exception to the mootness doctrine. We conclude that this case involved an active controversy and, therefore, was not moot.

A

We first consider whether this case was moot at the time of the October 25,1994 hearing before the Stafford board. Our mootness law is well settled. “Justiciability requires ... that there be an actual controversy between or among the parties to the dispute: Courts exist for determination of actual and existing controversies .... [W]here the question presented is purely academic, we must refuse to entertain the appeal.” (Citations omitted; internal quotation marks omitted.) Hallas v. Windsor, 212 Conn. 338, 347, 562 A.2d 499 (1989). “A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists.” (Internal quotation marks omitted.) Id., 347-48.

We conclude that an actual controversy existed in this case. For two consecutive school years, the Stafford board denied transportation to St. Edward School students on days when Stafford public schools were closed. Members of the Stafford board indicated a disposition to continue denying transportation to St. Edward School students when the public schools were not in session. The counsel for the Stafford public school administration argued at all levels that the Stafford board was not obligated to provide transportation to St. Edward School students on those days when Stafford public schools are closed. The parents repeatedly have contended that the Stafford board does have an obligation to provide transportation, regardless of whether Stafford public schools are open. The state board thus addressed an active controversy between the parties. We conclude that the trial court properly affirmed the state board’s decision that the case was not moot.

We conclude that this case also meets the requirements of the “capable of repetition, yet evading review” exception to the mootness doctrine. “ [F] or an otherwise moot question to qualify for review under the ‘capable of repetition, yet evading review’ exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its veiy nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance.” Loisel v. Rowe, 233 Conn. 370, 382, 660 A.2d 323 (1995).

Here, although the parents successfully obtained a temporary injunction requiring the Stafford board to provide transportation for all days except August 31, 1992, there was no time to do so for that date. Saint Edward School’s request for transportation services for April 18,19 and 20,1994, was not denied by the Stafford board until March 16, 1994. One month was too short a time for the issues raised by the denial to have been fully litigated in the courts. Because the Stafford board contends that it is not obligated to provide such transportation in the future, this controversy is likely to arise again. Because one of the parents, Anthony Armelin, has children who still attend St. Edward School, he may be affected by the denial of transportation in the future, and the parents are reasonable surrogates for other parents who might be so affected in the future. Finally, children are required by law to attend school and whether they have transportation is a matter of public importance. See Snyder v. Newtown, 147 Conn. 374, 161 A.2d 770, appeal dismissed, 365 U.S. 299, 81 S. Ct. 692, 5 L. Ed. 2d 688 (1960). For these reasons, we conclude that this case meets the requirements of the “capable of repetition, yet evading review” exception to the mootness doctrine.

B

We next turn to the question of whether, because the Stafford board found that the case was moot, the state board was limited to reviewing only the mootness decision, and thus was precluded from addressing the merits. We conclude that the state board properly ruled on the merits of the case.

The Stafford board argues that the state board, as an administrative agency conducting an appellate review, was limited to reviewing only the matters in the record and the questions specifically ruled upon by the Stafford board, the initial administrative fact finder. The Stafford board argues that because it found that the case was moot and therefore had failed to rule on the merits, the state board also could rule only on the question of mootness.

The question presented to both the Stafford board and the state board was whether St. Edward School students were entitled to transportation on those days when the Stafford public schools were not in session. The state board was correct in ruling on the merits, even though the Stafford board failed to do so, because § 10-186 empowers the state board to hear appeals de novo. Waterford v. State Board of Education, 148 Conn. 238, 248, 169 A.2d 891 (1961) (“The defendant [state board] was not confined to a consideration of the transcript of the hearing before the local board. Section 10-186 authorizes . . . the defendant to conduct a hearing de novo, examine witnesses, and develop facts in addition to those which were before the local board.”).

II

The Stafford board next argues that: (1) the state board’s decision constituted a declaratory ruling; (2) the statutory requirements for obtaining a declaratory ruling were not met; and (3) the state board lacked the authority to issue such a ruling. We conclude that the state board decision resolved a contested case, and was not merely a declaratory ruling.

A declaratory ruling is a “ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency.” General Statutes § 4-176 (a). A contested case, on the other hand, is “a proceeding ... in which legal rights, duties, or privileges of a party are required by statute to be determined by an agency after an opportunity for a hearing or in which a hearing is in fact held. . . .” General Statutes § 4-166 (2). Three criteria are considered in determining contested case status: “(1) whether a legal right, duty or privilege is at issue, (2) [which] is statutorily required to be determined by [an] agency, (3) through an opportunity for a hearing . . . .” (Internal quotation marks omitted.) Summit Hydropower Partnership v. Commissioner of Environmental Protection, 226 Conn. 792, 800-801, 629 A.2d 367 (1993); Herman v. Division of Special Revenue, 193 Conn. 379, 382, 477 A.2d 119 (1984). Here, § 10-186 required that the transportation rights of St. Edward School students be determined by the state board, after an opportunity for a hearing. The state board’s decision regarding the rights of the parties, therefore, was a final decision in a contested case, not a declaratory ruling.

Ill

We now reach the principal issue on appeal: the proper construction of the phrase “same kind of transportation services” in § 10-281. See footnote 2 of this opinion. The Stafford board contends that this phrase limits its obligation to provide bus services on those days when only the public schools are in session. We disagree.

We begin with basic principles of statutory construction. When interpreting statutes, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Gonsalves v. West Haven, 232 Conn. 17, 21, 653 A.2d 156 (1995).

We conclude that the “same kind of transportation services” means that the children attending nonpublic schools will ride to and from school under the same safe and reliable conditions as students transported to public schools. It does not mean that they shall be transported on days when only the public schools are in session. Though this seems clear from the language of the legislation itself, further support is garnered from the legislative history.

The present version of § 10-281 was introduced in 1971 by Senator Romeo G. Petroni. He commented at the time: “This is a bill that will equalize the problem that confronts many school systems in the state. It’s basically a question of getting all the children to school by public transportation. The bill deals with the safety of the young people whether they go to a public or private school.” 14 S. Proc., Pt. 6, 1971 Sess., p. 2780. Further, Senator Lawrence DeNardis remarked: “I think the parents have a right to all the supportive services necessary for their children to attain an education, whether it be in private or public schools.” Id., p. 2783. In the House of Representatives debate, Representative Lucien DiMeo endorsed the bill as follows: “I believe that the advantages of education and the advantages that the state provide [s] whether it is in busing or other assistance, should be uniform. . . . What I am speaking for is uniformity and education .... I believe that the children that do attend private schools do have a right to be bused the same as the children in the rest of the school system within that community.” (Emphasis added.) 14 H.R. Proc., Pt. 13, 1971 Sess., p. 5664.

This history reveals that the purpose behind this statute is: (1) to ensure the safety of children traveling to and from school; and (2) to provide equal transportation services to students, regardless of whether they attend private or public schools. See Snyder v. Newtown, supra, 147 Conn. 391.

If a statute can be construed in several ways, we will adopt the construction that is most reasonable. Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991). To provide transportation for private school students on days when only the public schools are in session does not reasonably meet either of the statute’s objectives. It is not reasonable to assume the legislature was concerned with children’s safety only on the days that both public and private schools were in session. It also is not reasonable to conclude that providing bus service to public school students for 180 days and to private school students for less is “equal” or “uniform.” Reasonable equality would also limit the town’s transportation obligation to no more than the 180 days mandated by law.

We also note that the legislature sought to protect school districts from incurring excessive costs in transporting nonpublic school students. Section 10-281 provides in relevant part: “In no case shall a . . . school district be required to expend for transportation to any nonpublic school, in any one school year, a per pupil transportation expenditure greater than an amount double the local per pupil expenditure for public school transportation. . . .’’As the trial court properly found, “[t]he implication of the limitation is that the obligation is not in all aspects coextensive with the public school schedule.” Board of Education v. State Board of Education, Superior Court, judicial district of Tolland, Docket No. TTDCV950057771S (November 13,1996). This reading of the term “same kind of transportation services” recognizes the inherent differences in transportation for public and private schools with respect to holiday, vacation or emergency recesses, location and teacher availability by contract.⁵

IV

Finally, we address the Stafford board’s argument that the state board’s interpretation of § 10-281 violates the first amendment to the United States constitution⁶ and article seventh of the Connecticut constitution.⁷ The Stafford board asserts that this policy forces it, and therefore the taxpayers of the town of Stafford, to assist and subsidize St. Edward School, which is a religious school. Moreover, the Stafford board argues that this interpretation renders it dependent on a school schedule determined by the religious school, constituting a constitutionally impermissible entanglement. We are not persuaded.

The first amendment prohibits the excessive entanglement of government and religion. In order for a statute to conform to this mandate, it “must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . [and; third] the statute must not foster an excessive government entanglement with religion.” (Internal quotation marks omitted.) Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971). The United States Supreme Court has upheld a New Jersey statute providing for direct reimbursements for the transportation costs incurred by parents of children attending a private, religious school; Everson v. Board of Education, 330 U.S. 1, 18, 67 S. Ct. 504, 91 L. Ed. 711 (1947); and a Minnesota statute permitting such parents to take tax deductions for certain educational expenses, including transportation to private schools. Mueller v. Allen, 463 U.S. 388, 403, 103 S. Ct. 3062, 77 L. Ed. 2d 721 (1983).

In determining that the New Jersey legislation did not violate the establishment clause of the first amendment to the United States constitution, the United States Supreme Court focused on the relevant statute’s secular purpose: the “legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.” Everson v. Board of Education, supra, 330 U.S. 18. In Mueller v. Allen, supra, 463 U.S. 397, the fact that the tax deduction was available for parents of all children attending both private and public schools supported the conclusion that the law did not “ ‘confer any imprimatur of state approval.’ ” Further indicators of the law’s secular purpose and effect were that benefits were provided to a large spectrum of people; id.; and the benefits were given to the individual parents, rather than directly to the schools. Id., 399. Furthermore, the court concluded that the legislation did not “excessively entangle the State in religion” in part because the legislation did not require “comprehensive, discriminating, and continuing state surveillance.” (Internal quotation marks omitted.) Id., 403.

Applying these standards, we conclude that the state board’s interpretation of § 10-281 does not violate the establishment clause. First, the secular purpose of § 10-281 is to provide safe and dependable transportation to all school children. The bright yellow school bus with its flashing red lights is a symbol of safe and reliable transportation.⁸ It represents no more state involvement on behalf of its passengers than that of the ambulance, police and fire services offered to all schools, religious or secular, private or public. Second, § 10-281 does not advance or inhibit religion because its transportation provision directly helps the parents and students of St. Edward School, as well as the parents and students of any other private, nonprofit school, rather than the school itself. Third, § 10-281 does not foster excessive government entanglement in religion. Merely because the schools may attempt to coordinate their school calendars does not constitute “comprehensive, discriminating, and continuing state surveillance.” (Internal quotation marks omitted.) Mueller v. Allen, supra, 463 U.S. 403, citing Lemon v. Kurtzman, supra, 403 U.S. 619. In this case we have no continuing cash subsidies or any situation⁹ creating “an intimate and continuing relationship between church and state.” Lemon v. Kurtzman, supra, 622.

The Stafford board also cannot prevail under the Connecticut constitution. The first amendment to the United States constitution and article seventh of the Connecticut constitution serve similar purposes. Griswold Inn, Inc. v. State, 183 Conn. 552, 558-59, 441 A.2d 116 (1981). This court already has held that a prior version of § 10-281, which provided that school districts may provide such transportation services,¹⁰ did not violate article seventh of our 1955 constitution.¹¹ Snyder v. Newtown, supra, 147 Conn. 391. Although article seventh was amended in 1965, the court made clear in Snyder that article seventh of the 1955 constitution prohibits laws which “ ‘aid one religion, aid all religions, or prefer one religion over another.’ ” Id., 390.¹² We concluded that § 10-281 “primarily serves the public health, safety and welfare and fosters education. In the light of our history and policy, it cannot be said to compel support of any church. It therefore does not come within the proscription of article seventh.” Id., 391. Requiring the Stafford board to provide transportation on days when the public schools are closed serves the vital health, safety and welfare of all students and fosters education. Accordingly, we reject the Stafford board’s claim that the state board’s interpretation of § 10-281 violates the Connecticut constitution.

The judgment is affirmed.

In this opinion CALLAHAN, C. J., and PALMER, J., concurred.

1 The individual defendants, Anthony Armelin and Lynda Schold, are the parents of children who were attending St. Edward School, a private, nonprofit school, at the time of the original request for transportation for St. Edward School students. Although Schold’s child no longer attends St. Edward School, we will refer to Armelin and Schold as the parents throughout this opinion.

2 General Statutes § 10-281 provides in relevant part: “Any . . . school district shall provide, for its children . . . attending nonpublic nonprofit schools therein, the same kind of transportation services provided for its children . . . attending public schools . . . . ”

3 General Statutes § 10-186 (a) provides in relevant part: “Each local or regional board of education shall furnish, by transportation or otherwise, school accommodations so that each child . . . may attend public school .... Any board of education which denies school accommodations . . . shall inform the parent ... of such child ... of his right to request a hearing by the board of education . "

4 The parents appealed under General Statutes § 10-186 (b) (2), which provides in relevant part: “Any such parent . . . aggrieved by the finding . . . may take an appeal from the finding to the State Board of Education. . . . The State Board of Education shall . . . hold a public hearing in the local . . . school district in which the cause of the complaint arises. ...”

5 We share Justice Berdon’s concern about the cost of school transportation to nonpublic schools. In this respect we have made clear that equality for public school transportation is that which is reasonable in kind and duration to ensure safe and reliable transportation. We also note, as Justice Powell did, that the parents of nonpublic school students support institutions “which afford wholesome competition with our public schools” and “relieve substantially the tax burden incident to the operation of public schools.” Wolman v. Walter, 433 U.S. 229, 262, 97 S. Ct. 2593, 53 L. Ed. 2d 714 (1977) (Powell, J., concurring in part and dissenting in part).

6 The first amendment to the United States constitution provides in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”

7 Article seventh of the Connecticut constitution provides in relevant part: “No preference shall be given by law to any religious society or denomination in the state. . . .”

8 Our statutes prohibit passing a standing school bus displaying flashing red signal lights. General Statutes § 14-279.

9 As the United States Supreme Court pointed out in Lemon v. Kurtzman, supra, 403 U.S. 621, “[t]he history of government grants of a continuing cash subsidy indicates that such programs have almost always been accomplished by varying measures of control and surveillance.”

10 At the time Snyder was decided, § 10-281 provided in relevant part: “Any . . . school district may provide, for its children attending private schools therein . . . any transportation services provided for its children attending public schools. . . This discretionary, rather than mandatory, language, however, does not affect our analysis. The primary purpose of the law remains the same: “It aids the parents in sending their children to a school of their choice, as is their right. It protects the children from the dangers of modem traffic and reduces the hazard of contracting illness in bad weather. ... It primarily serves the public health . . . Snyder v. Newtown, supra, 147 Conn. 391.

11 Article seventh, § 1, of the Connecticut constitution of 1955 provided in relevant part: “And each and every society or denomination of Christians in this state, shall have and enjoy the same and equal powers, rights and privileges . . . .”

12 The prohibition of such a preference is set forth explicitly for the first time in article seventh of the 1965 constitution. See footnote 7. The 1965 change “shows a greater awareness of religious freedom, and of the separation of church and state.” Griswold Inn, Inc. v. State, supra, 183 Conn. 559 n.2.