Ind. AG says school bus fees unconstitutional

Bryan Cohen Nov. 14, 2011, 1:24pm


INDIANAPOLIS (Legal Newsline) - Indiana Attorney General Greg Zoeller announced on Thursday that he will ask the State Board of Accounts to review a school corporation's transportation arrangement that charges parents fees for children to ride school buses.

In an official legal opinion issued on Thursday, Zoeller concluded that it is unconstitutional for Franklin Township Community School Corporation or any school corporation to require fees for school bus transportation even if the school system outsources bus service to another entity.

Zoeller's official legal opinion was researched at the request of State Rep. Mike Speedy and State Sen. Patricia Miller, both Republicans from Indianapolis. They asked about the legality of the current school bus fee arrangement of Franklin Township Schools in Marion County. Speedy and Miller requested analysis and guidance for possible legislation to address the situation.

"Under Indiana's Constitution and statutes, a public school corporation cannot charge fees for students to ride a bus to school to receive the public education to which they are entitled," Zoeller said. "The school cannot charge bus fees directly, and they cannot charge bus fees indirectly by outsourcing the driving to a third party."

Prior to the current semester, Franklin Township Schools contracted its bus transportation to a third party, Central Indiana Educational Service Center. The company charges parents a fee of $47.50 for the first child per month and $40.50 for each additional child per month to bus students to and from school.

Zoeller researched the issue for the legislators and concluded the new fee scheme is unconstitutional. Previously, Zoeller issued a separate opinion in July 2010 finding it also would be unconstitutional for a school corporation to charge bus fees directly.

While Indiana law would allow parents to independently contract jointly with bus drivers to provide transportation if the school corporation does not, a contract such as that would then require a school board's approval to comply with the school schedule, allow access to school grounds, and follow safety and insurance requirements. That did not happen in the Franklin Township situation because the school board contracted with CIESC first and then imposed the arrangement on parents, which is also unlawful, the opinion said.

Concluding that CIESC can't collect such fees from parents if it provides school bus service as part of public education, Zoeller called upon the SBoA to review the current transportation arrangement on Monday. If the SBoA later conducts an audit and finds that a local unit of government has appropriated or used funds without legal authorization, then it could trigger Zoeller's office to act as the state's collection agent. Zoeller would then recover the money from the officials and entities responsible.

"It is easy to understand how financial constraints might lead school corporations to difficult funding choices, which in turn have unintended consequences," Zoeller said.

"Many parents who cannot or will not pay the unconstitutional school bus fee are now forced to drive their children to and from school. However, the option chosen by Franklin Township Schools cannot be justified and should be discontinued and rectified to ensure the provision of a general and uniform common school system equally open to all."

Typically, Zoeller's office does not issue legal opinions while litigation is ongoing, and a private lawsuit was filed against the Franklin Township Schools by a parent on Nov. 2 challenging the school's transportation arrangement. In this situation, Speedy and Miller had already requested an opinion for purposes of possible legislation and the opinion was already being drafted before the lawsuit was filed. Zoeller issued the opinion as an exception to the rule.

"Due to the constitutional question presented and our prior opinion, we believe it is appropriate to issue this new opinion to provide useful guidance to our legislative clients and the judiciary who may have an interest in the state's view," Zoeller said.

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