Request By:
Mr. Bill W. Rideout
Superintendent
Henderson County Schools
1805 Second Street
Henderson, Kentucky 42420
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Assistant Deputy Attorney General and Chief Counsel
You have asked, at the request of the Board of Education of Henderson County, the Office of the Attorney General to respond to two questions relating to determining the cost of transporting nonpublic school students. Your questions were related as follows:
"1. To determine the per capita can the average daily attendance be divided into the transportation cost?
"The concern is if this is an acceptable manner of calculating the per capita cost if the denominator can be ADA rather than the number of transported students.
"2. Assuming that the actual increased cost to the Board of Education for transporting non-public school students in Henderson County is $10,000, further that the Henderson County Board of Education and Henderson County Fiscal Court and/or the non-public school in question contracts for the Fiscal Court and/or the non-public school to pay a sum equal to 150% of the actual cost incurred by the county board of education, does the payment of transportation expense meet the constitutional mandate prohibiting the county board of education from expending public school monies for the transportation of non-public school students?"
Based upon the authorities and for the reasons stated below, we believe the response to each of your questions must be in the negative.
We first reaffirm our conclusions reached in OAG 82-392, copy attached, in response to several questions presented by the Henderson County Attorney regarding transportation of parochial school children, referencing KRS 158.115 and Kentucky Constitution §§ 180 and 184. In that opinion we detailed the Kentucky appellate cases addressing this subject and which established the "per capita cost" method for determining the reimbursement cost to a public school district for transporting nonpublic school children. One of those cases, Sherrard v. Jefferson County Board of Education, 294 Ky. 469, 171 S.W.2d 963 (1943), which held that school tax money could not be used for the transportation of children attending private schools, was favorably cited in the recent prohibition against providing textbooks for private school children decision of the Supreme Court of Kentucky, Fannin v. Williams, 30 K.L.S. 8, 10 (rendered July 6, 1983).
Your first question is one of how the per capita cost method is to be computed. We believe the answer has been provided by the former Kentucky Court of Appeals in Rawlings v. Butler, 290 S.W.2d 801 (1956). At page 808 of the Rawlings decision, the Court in adopting the per capita method of determining the additional cost of transporting nonpublic school children in Nelson County, stated:
"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 equal 80.9 per cent of all children transported to school in Nelson County." (Emphasis added).
From this we think it clear that it is not a school district's average daily attendance figure which is to be the divisor, but rather only the total number of children, public and nonpublic, transported by a school district. Thus, the number of all children transported in a school district should be divided into a school district's transportation cost to determine the per capita cost figure. Once the per capita cost figure has been computed, that figure should be multiplied determine the per capita cost figure. Once the per capita cost against the number of nonpublic school children being transported so as to arrive at the total sum a public school district should be reimbursed for transporting the nonpublic school children.
The reason our response to your second question must be in the negative is that the methodology being suggested in your question is at odds with the Court of Appeal's required per capita cost calculation discussed above. With the per capita cost method there is no importance given to the argued "additional cost" to a local public school district for transporting nonpublic school students. An argument for the "extra or additional cost" method of computing the amount a public school district is to be reimbursed for nonpublic school children being transported was explicitly rejected in Board of Ed. of Jefferson County v. Jefferson County, 333 S.W.2d 746 (1960). The Court of Appeals discussed this point as follows:
"The fiscal court maintains that the clear purport of the statute authorizing the use of county funds to provide transportation of nonpublic pupils is that the county shall pay only the extra or additional, cost, and not a proportionate part of the total cost; that the per capita formula in effect would require the county to pay part of the cost of buses that carry no nonpublic pupils; that computations of other kinds of school costs are not analogous; and that there are peculiar and unusual circumstances in Jefferson County such that the application of the per capita formula 'would not accurately or fairly reflect this additional cost of transportation' within the meaning of the opinion in the Rawlings case.
"Because of constant changes in the costs of equipment, supplies and personal services, in the location of schools, pupils' residences, and highways, and in the number of children attending school, it is a practical impossibility to establish any figure as the absolute additional cost to the school transportation system of transporting non-public pupils. So the cost can be established only by estimate or approximation, based upon some theory of cost analysis. And in this foggy field, in which so many variable factors may enter, there is no fixed guide or standard by which a court can say that one formula is right and another is wrong. Any one of a number of formulas may be considered to achieve a reasonable approximation of cost, depending upon the attitude of approach, local customs, practices in the industry, particularly circumstances of the moment, etc. "We feel that the only satisfactory approach to this problem is from the standpoint of treating as the controlling consideration the proposition that the school district the proposition that the school district cannot constitutionally expend any of its funds to transport nonpublic pupils. In fact, as we view it, the only concern of the courts in respect to the problem presented is to make sure that no school money is expended for this purpose. Were it not for the constitutional bar, the question of how much money the county should pay would be strictly a matter to be worked out by contract between the fiscal court and the school board.
"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 the original).
In view of this language, we do not believe a purported "actual increase cost" figure may be constitutionally determined. Therefore, a proposal by the fiscal court to pay a sum equal to 150% of the purported "actual cost" may not be legally tolerated.
We trust the above information will be of assistance to you, the Board to Education of Henderson County, and others concerned with this matter.