B. Bell v. Wilkinsburg S.D.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Betty Bell, an adult individual, and :
Propel Schools, d/b/a Propel Charter :
School – Homestead, Propel Charter :
School – Sunrise, d/b/a Propel :
Braddock Hills, Propel Charter School – :
Pitcairn, and Propel Charter School – :
Hazelwood, :
Appellants :
:
v. :
: No. 1259 C.D. 2019
Wilkinsburg School District : Argued: October 11, 2023
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: January 31, 2024
Wilkinsburg School District (School District) transports its students to
and from school in school buses. However, the School District does not provide
school buses to transport students who live in the School District but attend charter
schools outside the School District. Instead, the School District provides those
students with public transit passes, leaving even elementary charter school students
to negotiate the public transit system, including transfers, on their own.
Betty Bell (Bell), an adult individual, and Propel Schools, d/b/a Propel
Charter School – Homestead, Propel Charter School – Sunrise, d/b/a Propel
Braddock Hills, Propel Charter School – Pitcairn, and Propel Charter School –
Hazelwood (collectively, Charter Schools) appeal from an order of the Court of
Common Pleas of Allegheny County (trial court) concluding that the School
District’s provision of public transit passes to Charter Schools’ students does not
violate applicable law. The trial court reasoned that the relevant statutory provisions
require only that the School District provide access to free transportation, such that
students do not have to walk over one and one-half miles or on hazardous streets.
Upon review, we are constrained to affirm the trial court’s order.
I. Background
Before the 2017-18 school year, the School District contracted to
provide school bus transportation to all resident School District and charter school
students in the catchment. During the summer of 2018, after a consultant study, the
School District announced that it was switching to free passes on public
transportation for students attending charter schools outside School District
boundaries, beginning in the 2018-19 school year. The School 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. The School
District did not hold a public meeting or seek approval from the Pennsylvania
Department of Education (Department) before making this change.
Charter Schools then arranged to provide their own buses for students
in kindergarten through grade five, but students in grades six and higher had to use
2
the public transportation passes provided by the School District. It is unclear
whether Charter Schools have continued to provide buses for the younger students.
Bell’s grandchildren lived with her. They attended Charter Schools,
and at least one of them had to use the transit passes. In October 2018, Charter
Schools and Bell sued the School District seeking declaratory and injunctive relief.
They asserted that the transit pass arrangement violated the Public School Code of
1949 (School Code)1 and the Charter School Law.2
The trial court upheld the School District’s provision of transit passes.
The trial court concluded that the School Code and the Charter School Law allow
districts to use public transportation and that any requirement to transport both kinds
of students under the same conditions pertains to travel distance and safety, not the
specific mode of transportation.
On appeal, this Court reversed in an opinion limited to the threshold
issue of whether the School District had to obtain the Department’s approval for a
change in its transportation provisions. Because we concluded such approval was
required, we did not reach any other issues. After granting allocatur, our Supreme
Court reversed, holding that the School District did not have to seek Department
approval. See Bell v. Wilkinsburg Sch. Dist., 283 A.3d 245 (Pa. 2022) The Supreme
Court therefore remanded the matter to this Court for us to consider the remaining
issues. Id.1
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 – 27-2702.
2
Added by the Act of June 19, 1997, P.L. 225, No. 22, as amended, 24 P.S. §§ 17-1701-A –
17-1751-A.
3
II. Applicable Statutory Provisions
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.
Section 1361 of the School Code provides, in pertinent part:
4
(1) The board of school directors in any school district
may, out of the funds of the district, provide for the free
transportation of any resident pupil to and from the
kindergarten, elementary school, or secondary school in
which he is lawfully enrolled, provided that such school is
not operated for profit and is located within the district
boundaries or outside the district boundaries at a distance
not exceeding ten miles by the nearest public highway. . . .
When provision is made by a board of school directors for
the transportation of public school pupils to and from such
schools . . . , the board of school directors shall also make
identical provision for the free transportation of pupils
who regularly attend nonpublic kindergarten, elementary
and high schools not operated for profit to and from such
schools . . . . Such transportation of pupils attending
nonpublic schools shall be provided during regular school
hours on such dates and periods that the nonpublic school
not operated for profit is in regular session, according to
the school calendar officially adopted by the directors of
the same in accordance with provisions of law. The board
of school directors shall provide such transportation
whenever so required by any of the provisions of this act
or of any other act of Assembly.
(2) The board of school directors in any school district
may, if the board deems it to the best interest of the school
district, for the purposes of transporting pupils as required
or authorized by any of the provisions of this act or of any
other act of the Assembly, appropriate funds for urban
common carrier mass transportation purposes from current
revenues to urban common carrier mass transportation
authorities to assist the authorities to meet costs of
operation, maintenance, capital improvements, and debt
service. Said contributions shall not be subject to
reimbursement by the Commonwealth of Pennsylvania.
(3) The State Board of Education shall adopt regulations,
including qualifications of school bus drivers, to govern
the transportation of school pupils.
24 P.S. § 13-1361.
Section 1362 of the School Code provides, in pertinent part:
5
The free transportation of pupils, as required or authorized
by this act, or any other act, may be furnished by using
either school conveyances, private conveyances, or
electric railways, or other common carriers, when the total
distance which any pupil must travel by the public
highway to or from school, in addition to such
transportation, does not exceed one and one-half (1½)
miles, and when stations or other proper shelters are
provided for the use of such pupils where needed, and
when the highway, road, or traffic conditions are not such
that walking constitutes a hazard to the safety of the child,
as so certified by the Department of Transportation. The
Department of Transportation shall take into account the
presence of sidewalks along the highway, but such
presence or lack thereof shall not be controlling and the
department shall consider all relevant safety factors in
making its determination as to whether or not walking
constitutes a hazard to pupils. All private motor vehicles
employed in transporting pupils for hire shall be
adequately covered by public liability insurance in such
amount as the board of school directors shall require.
24 P.S. § 13-1362.
Section 2509.3 of the School Code provides, in pertinent part:
Each school district, regardless of classification, shall be
paid by the Commonwealth the sum of thirty-five dollars
($35) for each nonpublic school pupil transported in the
school year 1978-1979 through the school year 1983-1984
. . . . For the school year 2001-2002 and each school year
thereafter, each school district shall be paid the sum of
three hundred eighty-five dollars ($385) for each
nonpublic school pupil transported.
24 P.S. § 25-2509.3, added by the Act of July 13, 1979, P.L. 94.
III. Discussion
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
6
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.3
3
Charter Schools also cite Springfield School District v. Department of Education, 397
A.2d 1154 (Pa. 1979), and Rhoades v. School District of Abington Township, 226 A.2d 53 (Pa.
1967), two pre-Charter School Law cases in which our Supreme Court emphasized that districts
must provide safe transportation, specifically school buses, even to nonpublic students in their
catchments. Springfield, 397 A.2d at 562-63; Rhoades, 226 A.2d at 67. Current Section 1726-A
of the Charter School Law provides that “if the school district provides transportation to the public
7
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
schools of the school district for elementary students, including kindergarten 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.” 24 P.S. § 17-1726-A.
4
We note, however, our Supreme Court’s acknowledgment of the trial court’s finding that,
in the absence of contrary evidence, there were no hazardous road or traffic conditions posing a
threat to children walking between public bus stops and Charter Schools’ facilities. Bell v.
Wilkinsburg Sch. Dist., 283 A.3d 245, 249 n.7 (Pa. 2022).
8
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.5
5
Charter Schools also raise a constitutional issue, suggesting that refusal to transport
charter students on school buses violates their fundamental right to a public education. However,
as Charter Schools acknowledge, they did not raise this issue previously. Charter Schools’ Reply
Br. at 4. The most that Charter Schools can point to is that they cited in the trial court the
presumption that the legislature does not intend to violate the Constitution. They cite no authority
to support an inference that this is sufficient to raise a constitutional challenge. Accordingly, they
9
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.
The School District responds that Section 1362 of the School Code
expressly permits districts to provide students with free transportation on public
transit. The School District asserts that the trial court was correct in holding that
“under the same conditions” in Section 1726-A means that transit routes must be
nonhazardous, not that charter school students and district students must be
transported by the same mode. The District maintains that its provision of public
bus passes to charter school students fulfills its obligation under Section 1726-A of
the Charter School Law. The School District acknowledges that for students in
kindergarten through fifth grade, public bus transit may be less desirable, but the
School District insists public transit has never been found unsafe. See Bell, 283 A.3d
at 249 n.7 (noting trial court’s finding of “no highway, road, or traffic conditions
that constituted a hazard to the safety of any child who was walking between a
[public] bus stop and a charter school”). The School District also cites as support
the observation of our Supreme Court, in its remand opinion, quoted below, that
safety issues in transporting students by school bus versus common carrier are
matters of public policy which are under the rubric of the legislature, not the courts.
See Bell, 283 A.3d at 257 n.15.
have not preserved a constitutional challenge for appeal, and we will not consider it. Pa. R.A.P.
302(a) (“Issues not raised in the trial court are waived and cannot be raised for the first time on
appeal.”).
10
The public bus passes are limited to students residing in the School
District who attend charter schools located outside of the School District. As our
Supreme Court observed, no evidence at trial showed that any grade school student
had to walk more than one and one-half miles to reach a public bus stop or that the
routes to do so were unsafe. See Bell, 283 A.3d at 249 n.7. Therefore, we agree
with the School District that its transportation policy does not violate Section 1362
of the School Code, which requires less than one and one-half miles of walking
distance, stations or shelters where needed, and no DOT certification of hazardous
conditions. The School District cites Hoffman v. Steel Valley School District, 107
A.3d 288 (Pa. Cmwlth. 2015), in which this Court concluded that a school district
was not required to provide private transportation to charter school students and that
it was not unreasonable for the school district to provide reimbursement for either
public transit or mileage for parents to drive their children to charter schools.
The School District concedes that in the past, it had to provide the same
mode of transportation for charter school and district students; however,
amendments have removed that requirement in favor of the current more flexible
approach. We are forced to agree. Despite the concerns of Charter Schools and the
students’ parents, the ages of students, their need to transfer buses, or the lengths of
their bus rides are not legal factors in determining compliance with Sections 1726-
A and 1362. The plain language of Section 1726-A of the Charter School Law, as
currently worded, requires only free transportation for all students. The School
District, in its discretion, may provide any of the four modes of transportation listed
in Section 1362; Section 1726-A does not require identical transportation for school
district students and charter school students. Essentially, Charter Schools ask this
Court to rewrite Section 1726-A, using the current “under the same conditions”
11
language, to restore what the legislature took out through its amendments, i.e., any
former implication that charter and district students must be provided the same
modes of transportation due to the language in former Section 1726 that
transportation must be provided “on the same terms and conditions.” Former 24
P.S. § 17-1726.
Rhoades, on which Charter Schools rely, stated that students are safer
on school buses than in cars. 226 A.2d at 57. However, as the School District
correctly observes, our Supreme Court’s opinion in Rhoades did not discuss the
relative safety of school buses and public buses, much less require school buses
rather than public buses. See id. Therefore, we agree with the School District that
Rhoades is not determinative here. Similarly, Section 1361 applies only to
nonpublic school students, who must receive “identical provision” of transportation
to public students. 24 P.S. § 13-1361. Because charter schools are public schools,
not nonpublic schools, Section 1361 does not apply here.
Mosaica, on which Charter Schools also rely, dealt with a prior version
of Section 1726-A, which referenced Section 1361 of the School Code; the current
version does not. 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.
12
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.
As noted above, DOT has not certified any hazardous walking routes
within the area at issue here, and Charter Schools failed to provide evidence
sufficient to persuade the trial court otherwise. Therefore, the School District’s
transportation policy does not violate Section 1362 of the School Code. Also,
requiring some students to transfer buses is not prohibited by the School Code or
Charter School Law, so long as the students do not have to walk more than one and
one-half miles. The quality or pleasantness of any individual student’s
transportation experience cannot be the basis for a contrary conclusion. See
Chipman, 841 A.2d at 1104 (concluding that a private school student who had to
transfer and take a longer ride in a school bus did not show a violation of Section
1361’s “identical provision” language “[i]n the absence of probable proof of safety
problems . . .”).
In its decision reversing and remanding, our Supreme Court observed:
We do not minimize the important concerns [Charter
Schools and their] amici highlight, in support of their
statutory argument, regarding the perceived safety
advantages of transporting students by school bus over a
common carrier.[6] However, these are matters which, at
6
An amicus brief before our Supreme Court (a group of charter schools not involved here)
described qualitative advantages of school buses and public buses, including their bright color and
13
their core, involve policy judgments, and, as such, were
presumably carefully considered by the General Assembly
when it permitted student transportation by common
carrier under Section []1362 of the Public School Code,
while imposing explicit student safety requirements which
a school district must meet in order to use such a mode of
transportation . . . . It is not this Court’s role to supplant
those policy determinations.
Bell, 283 A.3d at 257 n.15. We, too, acknowledge the serious safety hazards that
may arise from sending children of tender years on public transportation
unaccompanied. However, 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.
In short, the trial court construed the plain language of the School Code
and the Charter School Law correctly. Notwithstanding Charter Schools’ assertions
concerning the legislature’s intent, the statutory language is clear on its face, and we,
like the trial court, are bound to uphold it as drafted. Although we share Charter
Schools’ safety concerns, only the legislature can make the policy choice advocated
by Charter Schools here.
ability to stop and put out the stop sign arm on the side of the bus, as well as heightened background
checks applicable to school bus drivers.
14
IV. Conclusion
Based on the foregoing discussion, we are constrained to affirm the trial
court’s order.
___________________________________
CHRISTINE FIZZANO CANNON, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Betty Bell, an adult individual, and :
Propel Schools, d/b/a Propel Charter :
School – Homestead, Propel Charter :
School – Sunrise, d/b/a Propel :
Braddock Hills, Propel Charter School – :
Pitcairn, and Propel Charter School – :
Hazelwood, :
Appellants :
:
v. :
: No. 1259 C.D. 2019
Wilkinsburg School District :
ORDER
AND NOW, this 31st day of January 2024, the August 23, 2019 order
of the Court of Common Pleas of Allegheny County is AFFIRMED.
___________________________________
CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Betty Bell, an adult individual, and Propel :
Schools, d/b/a Propel Charter School - :
Homestead, Propel Charter School - :
Sunrise, d/b/a Propel Braddock Hills, :
Propel Charter School - Pitcairn, and :
Propel Charter School - Hazelwood, :
Appellants :
:
v. : No. 1259 C.D. 2019
: Argued: October 11, 2023
Wilkinsburg School District :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE McCULLOUGH FILED: January 31, 2024
I join the dissent of Judge Wallace. 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.
Therefore, I dissent.
________________________________
PATRICIA A. McCULLOUGH, Judge
PAM - 2
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Betty Bell, an adult individual, and :
Propel Schools, d/b/a Propel Charter :
School - Homestead, Propel Charter :
School - Sunrise, d/b/a Propel Braddock :
Hills, Propel Charter School - Pitcairn, :
and Propel Charter School - Hazelwood, :
Appellants :
:
v. : No. 1259 C.D. 2019
: Argued: October 11, 2023
Wilkinsburg School District :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE WALLACE FILED: January 31, 2024
I respectfully dissent. When our General Assembly passed Section 1726-A
of the Charter School Law1 in 1997, its intent was to provide charter school students
with the same transportation options as their peers attending traditional public
1
The Public School Code of 1949 (School Code), Act of March 10, 1949, P.L. 30, as amended,
added by Section 1 of the Act of June 19, 1997, P.L. 225, 24 P.S. 17-1726-A. Article XVII-A of
the 1997 Act added the Charter School Law to the School Code.
schools. As originally drafted, Section 1726-A said this explicitly. It directed that
charter school students who reside in the school district where their charter school is
located “shall be provided transportation to the charter school on the same terms and
conditions as transportation is provided to students attending the schools of the
district.” Act of June 19, 1997, P.L. 225. Section 1726-A directed that students who
do not reside in the school district “shall be provided transportation under” Section
1361 of the School Code, 24 P.S. § 13-1361.2 Id.
In 2002, our Supreme Court considered this prior version of Section 1726-A
and concluded the Philadelphia School District was required to transport students to
a charter school outside its boundaries. Mosaica Acad. Charter Sch. v. Dep’t of
Educ., 813 A.2d 813, 820-22 (Pa. 2002). The Supreme Court observed that,
although charter schools were public schools by definition, the General Assembly
“went to great lengths to treat the charter schools akin to private schools for purposes
of transportation.” Id. at 822 (emphasis omitted). The Court focused on Section
1726-A’s requirement that students who do not reside in the school district must
receive transportation under Section 1361. Id. The Court cited other factors as well,
including the statutory definition of “charter school” as “an independent public
school”3 and the fact that school districts transporting charter school students could
2
Section 1361(1) permits a school district to provide “any resident pupil” with free transportation
to schools located within the district or outside its boundaries “at a distance not exceeding ten
miles by the nearest public highway.” 24 P.S. § 13-1361(1). If a school district provides free
transportation to public school students, it must “make identical provision for the free
transportation” of students attending nonpublic schools “during regular school hours on such dates
and periods that the nonpublic school . . . is in regular session.” Id.
3
See Section 1703-A of the Charter School Law, 24 P.S. § 17-1703-A.
SW - 2
receive payments under a provision that applied specifically to nonpublic school
students.4 Id.
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.
Preliminarily, I believe our General Assembly eliminated the “same terms and
conditions” language from Section 1726-A because it was ambiguous, not because
of a desire to deny charter school students equal transportation options. Under
4
See Section 2509.3 of the School Code, added by Section 8 of the Act of July 13, 1979, P.L. 94,
24 P.S. § 25-2509.3.
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Section 1361(1), a school district “may” provide free transportation for public school
students, although it is not required. 24 P.S. § 13-1361(1). Section 1726-A’s
original language, that school districts “shall” provide transportation to charter
school students “on the same terms and conditions as transportation is provided to
students attending the schools of the district” was capable of multiple interpretations
if students attending the schools of the district did not receive transportation. See
Act of June 19, 1997, P.L. 225. The inclusion of the word “shall” could mean charter
school students were entitled to transportation even when traditional public school
students were not. Meanwhile, providing transportation on “the same terms and
conditions” could mean charter school students were not entitled to transportation
unless the school district was also transporting its traditional public school students.
Section 1726-A(a)’s current language resolves this ambiguity by directing simply
that charter school students “shall be provided free transportation.”5 24 P.S. § 17-
1726-A(a).
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
5
It makes sense that charter school students must always receive free transportation under Section
1726-A because a school might be chartered by multiple school districts and enroll students from
a broad geographic region. See Section 1718-A of the Charter School Law, 24 P.S. § 17-1718-A.
The distance from a student’s residence to his or her charter school may be greater than it would
be to a traditional public school or local nonpublic school.
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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)).
For these reasons, I 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
6
The possibility of unequal treatment is particularly pronounced in Philadelphia. The Majority
cites Section 1726-A(a.1) to suggest that charter schools students have equal transportation options
“only in Philadelphia.” Bell v. Wilkinsburg Sch. Dist. (Pa. Cmwlth., No. 1259 C.D. 2019, filed
January 31, 2024), Maj. Op. at 7. However, Section 1726-A(a.1) places limitations on the
transportation required for Philadelphia charter school students. Although charter school students
must receive transportation as a general rule, charter school students in Philadelphia must receive
transportation only “if they are the same age or are enrolled in the same grade, grades or their grade
equivalents as any of the students of the school district for whom transportation is provided under
any program or policy to the schools of the school district.” 24 P.S. § 17-1726-A(a.1).
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school bus, to traditional public school students while denying that option to charter
school students. I would, therefore, reverse the entry of judgment in favor of
Wilkinsburg School District.
______________________________
STACY WALLACE, Judge
Judge McCullough joins in this Dissenting Opinion.
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