Request By:
The Honorable Dave Hourigan
State Representative
Route 1, Box 69
Gravel Switch, Kentucky 40328
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Anne E. Keating, Assistant Attorney General
In your recent letter you requested an opinion from this office concerning transportation of students to nonpublic schools based on language in the 1990 education reform bill, House Bill 940. Section 97 amends KRS 157.360 on school funding; subsection (2)(c) addresses transportation costs, and provides that per pupil cost of transportation is to be calculated according to KRS 157.370. The components of the current system of financing transportation will be under study until July, 1992. Finally, this section provides:
Districts which contract to furnish transportation to students attending nonpublic schools may adopt any payment formula which assures that no public school funds are used for the transportation of nonpublic students.
Section 97(2)(c) of Act of April 11, 1990, Chapter 476, 1990 Advance Legislative Service 1615 at 1615, amending KRS 157.360.
In particular, you ask whether this new language would allow school boards to use payment formulas other than the per capita formula set forth in Rawlings v. Butler, Ky., 290 S.W.2d 801, 808 (1956), reflecting the actual cost of transporting parochial or private school children while guaranteeing that no public school funds would be used for that purpose.
Several cases have defined permissible expenditures for transportation of Kentucky school children attending nonpublic schools. In 1942, the Court of Appeals held unconstitutional an Act to provide transportation of school children attending nonpublic schools, paid for from general funds of the local school board. See Sherrard v. Jefferson County Board of Education, 294 Ky. 469, 171 S.W.2d 963 (1942). Three years later the Court of Appeals found constitutional an Act which allowed counties, from general funds, to pay for transportation for all elementary school students who did not live within reasonable walking distance of the school attended in compliance with compulsory school attendance laws to protect the health and safety of school children. Nichols v. Henry, 301 Ky. 434, 191 S.W.2d 930 (1945).
The courts then addressed how transportation costs for nonpublic school students should be computed. In 1956, the Court of Appeals selected a formula to ensure that no school funds would be spent on transportation of children to nonpublic schools:
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.
Rawlings v. Butler, supra. The computation involved determining the percentage that nonpublic school children constituted when compared to the number of public school children. That percentage was to be applied to the total cost of the school transportation system. The Court added, that if unusual circumstances would result in an inaccurate or unfair result from application of the "per capita" method to the computation of transportation cost, those circumstances would be taken into consideration. Rawlings v. Butler, supra.
Later, Kentucky Courts were asked to review several formulas under consideration in determining the cost of transporting pupils of elementary grade attending nonpublic schools. Board of Education of Jefferson County v. Jefferson County, Ky., 333 S.W.2d 746 (1960).
The Court looked at four formulas. First they examined the per capita formula, in which the number of nonpublic school students was compared with the number of public school students. That percentage was applied to the total transportation cost, with adjustments for special public school trips for schools on double sessions. The second formula involved determining the cost of extra buses needed to provide transportation to students attending nonpublic schools. The third formula was based on the determination of the percentage of nonpublic school students only on buses that carried both students attending public and nonpublic schools, and application of that percentage to the cost of operating those particular buses plus a share of the administrative cost. The fourth formula was based on an estimate of per pupil mile cost.
According to the Court, the controlling consideration must be the constitutional requirement prohibiting school districts from expending any school funds for nonpublic school pupils. In the view of the Court, the straight per capita method came closest to giving such assurance. While the Court acknowledged that another formula would not necessarily result in improper spending, it preferred the per capita formula, in absence of clear and unequivocal evidence that the formula would not, under particular circumstances, accurately or fairly reflect the cost and in absence of clear and unequivocal evidence that some other formula would be better. Board of Education of Jefferson County v. Jefferson County, supra.
In 1980, this office addressed whether a county fiscal court could provide snow-clearing service to the county school system in exchange for the school system's providing transportation to students of a private school. Finding no legal reason to prohibit the agreement, this office noted that the arrangement would require careful bookkeeping to show that no school funds were being used for transportation of nonpublic school students. The value of the service must be fairly and accurately determined, and provisions must be made for payment to the school system of any balance due, and appropriate procurement laws must be followed, where applicable. OAG 80-390. Subsequently this office opined that the "per capita" method should be utilized based on Rawlings v. Butler, supra, and Board of Education v. Jefferson County, supra. OAG 82-392 and OAG 83-294. To date the courts have only sanctioned the "per capita" method.
Effective July 13, 1990, the language of House Bill 940, Section 97(2)(c), expressly permitted school districts which contract to furnish transportation for students attending nonpublic schools to adopt any payment formula so long as no public school funds are used. It is the opinion of this Office that this language permits school districts to use formulas other than the per capita formula set forth in Rawlings v. Butler, supra, and Board of Education of Jefferson County , supra . Nevertheless, it remains the responsibility of each district to ensure that no public schools funds are applied toward transportation of students to nonpublic schools. To survive a court challenge, each district will wish to apply a method that will accurately reflect the cost and survive strict scrutiny should a court challenge occur.