Request By:
Mr. William I. Markwell
Henderson County Attorney
Courthouse
Henderson, Kentucky
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
A request for a formal opinion of the Office of the Attorney General regarding the transportation of nonpublic school students to private or parochial schools has been presented by you as County Attorney for Henderson County. Although we have conversed over the telephone several times concerning this matter, we apologize for belatedly responding in writing to your request.
You have presented for our consideration two questions you believe have not been answered by Kentucky appellate court decisions or formal opinions of the Office of the Attorney General. Your questions are as follows:
"1. KRS 158.110 provides that Boards of Education provide transportation from their general funds or otherwise for any pupil of any grade to the nearest school to said people's residence within the District who does not live within a reasonable walking distance to such nearest school or appropriate grade level.
"I am wondering whether it is constitutionally reasonable for the Board of Education to provide transportation for 'pupils' from their homes to the nearest (public) schools so long as they do not live within a reasonable walking distance to such school. Transportation from public schools to parochial schools would then be provided either by the fiscal court or the local parochial school system.
"2. In the event that your answer to question one is that such arrangement is not constitutionally permissible I am wondering if it is appropriate for the Board of Education to provide transportation for parochial pupils from their homes to the nearest public school (so long as they do not live within a reasonable walking distance to such school) and for the Board of Education to be reimbursed by either the fiscal court and/or the local parochial school system for the additional cost (if any) to the school system. Transportation from the public schools to the parochial schools could then be provided otherwise.
"I would propose in the question two situation to have the school board advise the fiscal court of the additional cost incurred to transport students from their homes to the nearest public school. In many cases the cost would be negligible or nonexistent because in most cases the school buses would not be required to run additional routes and most of the buses would have available seating in any event."
We are of the formal opinion the answer to each of your questions must be in the negative based upon the authorities and for the reasons set out below.
Two school law provisions are particularly involved in reviewing your questions. KRS 158.110(1) reads:
"(1) Boards of education may provide transportation from their general funds or otherwise for any pupil of any grade to the nearest school to said pupil's residence within the district who does not live within a reasonable walking distance to such nearest school of appropriate grade level."
The second statutory provision is KRS 158.115 which provides as follows:
"Each county may furnish transportation from its general funds, and not out of any funds or taxes raised or levied for educational purposes or appropriated in aid of the common schools, to supplement the present school bus transportation system for the aid and benefit of all pupils of elementary grade attending school in compliance with the compulsory school attendance laws of the Commonwealth of Kentucky who do not reside within reasonable walking distance of the school they attend and where there are no sidewalks along the highway they are compelled to travel; and any county may provide transportation from its general funds to supplement the present school bus transportation system for the aid of any pupil of any grade who does not live within reasonable walking distance of the school attended by him in compliance with the compulsory school attendance laws and where there are no sidewalks along the highway he is compelled to travel."
In support of the conclusion reached above, we first cite the pertinent Kentucky Court of Appeals cases in this area. See
Board of Ed. of Jefferson County v. Jefferson County, Ky., 333 S.W.2d 746 (1960),
Rawlings v. Butler, Ky., 290 S.W.2d 801 (1956),
Nichols v. Henry, 301 Ky. 434, 191 S.W.2d 930 (1945), and
Sherrard v. Jefferson County Bd. of Ed., 294 Ky. 469, 171 S.W.2d 963 (1942). In Sherrard the Court of Appeals analyzed for constitutionality the predecessor statute to what is now KRS 158.110. That statute 4399-20, Carroll's Kentucky Statutes, had been amended in the 1940 General Assembly by adding:
"Pupils attending private schools shall be entitled to the same rights and privileges as to transportation to and from school as are provided herein for pupils of public schools. "
The Court determined this language to violate the Kentucky Constitution. This decision, by virtue of constitutional restrictions, prohibits a school district from spending any school monies for the transportation of nonpublic school children. We believe school monies include, besides minimum foundation money, funds generated by a school district at the local level.
The next case is that of
Nichols v. Henry, supra. This case determined KRS 158.115 to be constitutional and not violative of section 180 as well as of other sections of the Kentucky Constitution. The thrust of this holding is that under KRS 158.115 a county may legally expend money from its general funds for the purpose of furnishing transportation for pupils attending nonpublic schools.
The cases of Rawlings v. Butler as germane to this opinion and Jefferson County Bd. of Ed. v. Jefferson County, each cited above, considered the manner in and degree to which a fiscal court would be expected to reimburse a local school district for transporting nonpublic school children on public school district buses. In Rawlings, 290 S.W.2d at 807, the Court of Appeals referred to the Sherrard and Nichols decisions, stating:
"It is patent that under the Sherrard opinion the School Board of Nelson County cannot use money raised by taxation for school purposes to aid in the transportation of children attending parochial or private schools. And it is just as plain under the Nichols opinion that the fiscal court may under KRS 158.115 bear the expense of transporting children attending parochial or private schools."
The Court in Rawlings concluded that a fiscal court must bear the transportation costs for nonpublic school children on a "per capita" basis. The Court stated:
"Inasmuch as practically all school funds are distributed upon a 'per capita' basis, and as most school expenses are determined upon such basis, we feel constrained to adopt the 'per capita' method in determining this additional cost of transportation. " 290 S.W.2d at 808.
The Court went on saying:
"In the instant case this additional cost is 19.1 per cent of the total cost of the school bus system of Nelson County as the Catholic children equal 19.1 per cent and the children attending the public schools equals 80.9 per cent of all children transported to school in Nelson County. Should any peculiar or unusual circumstances exist which show the 'per capita' method would not accurately or fairly reflect this additional cost of transportation, such circumstance may be taken into consideration in applying the 'per capita' method in arriving at this additional cost."
In Jefferson County Board of Ed. v. Jefferson County, the Court of Appeals affirmed and reiterated the "per capita" theory of cost analysis. The Court considered several methods by which the costs for transportation of nonpublic school children could be figured, but decided to stick with the "per capita" methodology. The Court noted at page 748 of its decision:
* * * [i]t is a practical impossibility to establish any figure as the absolute additional cost to the school transportation system of transporting nonpublic pupils. So the cost can be established only by estimate or approximation, based upon some theory of cost analysis."
The Court further stated toward the end of its decision:
"So we think our duty is to choose the formula that best assures that none of the expense of transporting nonpublic pupils will come from school funds. The straight per capita method seems to come closest to giving such assurance." (Emphasis in original) Id.
It is conceded that each of the above referenced cases have dealt with and contemplated the issue as being one involving the cost of transporting nonpublic school students from their homes to nonpublic schools via public school district buses. For example, in
Nichols v. Henry, supra, at page 935, the Court of Appeals stated:
"* * * [i]t is our view that transportation may be furnished in the first instance only to those who do not live within reasonable walking distance of the school, and where there are no sidewalks available at or within a reasonable distance of their homes, but having once boarded the bus they will not be required to leave it until they have been transported to within a reasonable distance of their school."
Of the several prior formal opinions of this office on this subject, OAG 72-708, 72-795, 75-597, 76-261, 76-529, and 80-390, only OAG 75-597 considered the legality of transporting nonpublic school children from their homes to a public school (vocational). We concluded in this latter opinion that "common school funds may not be used to transport private or parochial school students from their homes or their private or parochial schools to a public vocational school." The new twist you add to this subject of the legality of transporting nonpublic school children is whether a public common school district constitutionally may transport nonpublic school children from their homes to a public school from which the nonpublic school students would then be transported to their respective nonpublic schools. The school districts would receive no compensation from the fiscal court under this plan and the fiscal court would only bear the cost attendant to providing transportation from the public school, where the children have been unloaded, to the nonpublic school sites. As we have already stated, we do not believe this plan is acceptable for constitutional reasons. KRS 158.110(1), set out above, we interpret to authorize, in a local board's discretion, the transportation of pupils who attend a public school in the district who do not live within a reasonable walking distance from the school they have been assigned. Certainly a local school district may only receive minimum foundation transportation unit money for "all public school pupils transported at public expense who live one mile or more from school, * * *." (Emphasis added). KRS 157.370(3) and see 702 KAR 5:020. Since we are unable to conclude that absolutely no cost is associated with transporting nonpublic school children from their homes to a public school where they would meet a ride to a nonpublic school, we believe the school district must receive compensation for that additional transportation cost as required by the Court of Appeals decision in the Sherrard case. If school district money in any respect and in any amount is used to transport nonpublic school children the Kentucky Constitution would be violated. See
Jefferson County Board of Education v. Jefferson County, supra. And, this being so, we believe the Court of Appeals has concluded the manner in which the approximated additional cost is to be figured and paid is by the per capita theory of cost analysis. This method requires a computation of the total transportation cost in the school district and then a determination made as to the percentage of the total children transported who are nonpublic school children. As figured in the Board of Education of Jefferson County case, 19.1 per cent of the children being transported in Nelson County did not attend the public schools. And, therefore the Nelson County Fiscal Court was determined to be responsible for 19.1 per cent of the total transportation cost.
Our negative answer to your second question stems from our belief you are suggesting that some method of cost analysis besides "per capita" be utilized. As indicated above, we believe the Court of Appeals has sanctioned only the per capita methodology for use in determining the additional transportation costs in transporting nonpublic school children. A "per pupil mile cost" formula was rejected by the Court of Appeals in Board of Education of Jefferson County v. Jefferson County. The per capita formula as described in that case should be employed which does not envision a day in and day out counting of the unmber of nonpublic school children riding the buses, but rather "simply involves determining the percentage the number of nonpublic pupils transported constitutes of the total number of pupils transported, and applying that percentage to the total transportation costs (including depreciation on a equipment), * * *."
Board of Education of Jefferson County v. Jefferson County at page 747. Therefore, we believe to the extent nonpublic school children are transported on public school buses, irrespective of their point of departure, the local school district must be reimbursed on a per capita basis to avoid constitutional violation.
We trust the above has adequately explained our position relative to the questions you have presented.