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October 2, 1996
Civil Division - New Castle County
Mr. Michael C. Ferguson
Interim State Superintendent
Department of Public Instruction
The Townsend Building
P. O. Box 1402
Dover, DE 19903-1402
Re: Transportation of Pupils Enrolled in "Choice" and "Charter" Schools
Dear Superintendent Ferguson:
By letter dated August 1, 1996, you posed several questions to the Attorney General relating to the transportation of pupils enrolled in "Choice" and "Charter" schools as defined by 14 Del. C. Chapters 4 and 5 respectively. The questions which you posed and our responses thereto follow.
Opinion
1. May a charter school, in light of the free public school clause in Article X of the State Constitution, charge parents for all or part of the transportation cost? Is there a different answer if the student resides in the district in which the charter school is located and if the student resides outside the district in which the charter school is located?
No, a charter school may not charge parents for all or part of the cost of transportation. Under the provisions of 14 Del. C. Sec. 505, the General Assembly has exempted charter schools
from all of the provisions of Title 14 of the Code and all school district regulations, "except as
specified in this chapter..." In 14 Del. C. Sec. 508, the General Assembly explicitly provided that charter schools are responsible to provide transportation for students, and established a method to publicly finance such transportation. The statute provides for transportation not only of students within the district in which the charter school is located, but also for students who reside outside of that district. However, if a student resides outside of the district in which the charter school is located, the parents of such student are responsible for transporting the student without reimbursement to and from a point on a regular bus route of the charter school.
As the General Assembly has clearly mandated that charter school students be transported at public expense, it is unnecessary to consider whether or not Article X of the Constitution requires free transportation.
2. May a charter school elect not to provide transportation to its students and if so is the school entitled to any funding for transportation?
As noted above, 14 Del. C. Sec. 508 requires that a charter school provide for the transportation of its students. A charter school has the option of either requesting the school district in which the school is located to transport students or receiving payment from each student's home district and directly assuming responsibility for transportation. Under the statute
a charter school is not entitled to any transportation funds unless it elects to become responsible
for the transportation of its students.
3. May a school district elect to modify its regular school bus routes or initiate new routes so that students who reside in one school attendance area and choose to attend a school outside that attendance area are transported to the choice school?
Yes, a school district may elect to modify its regular school bus routes or initiate new routes so that students who reside in one school attendance area and choose to attend a school outside that attendance area are transported to the choice school. 14 Del C. Sec. 409 (a) provides:
The parent of any child enrolled in a district other than the district of residence, or enrolled in a school within the district of residence other than the school in which the child would normally be enrolled based upon the residence of the child's parent(s), shall be responsible for transporting the child without reimbursement to and from a point on a regular bus route of the receiving district; provided, however, that nothing in this section shall prevent the receiving district, after notice to the district of residence, from establishing and operating bus routes in the district of residence for the purpose of transporting students enrolled in the receiving district.
14 Del. C. Sec. 414 provides:
Where the district of residence includes more than one school or more than one program within any school providing instruction at a given grade level, a parent of a child entering such grade level may apply to enroll his or her child in any public school program within the district of residence other than the program in which the child would normally be enrolled based on the child's place of residence in the manner provided in this chapter, and in such cases, the district of residence shall also be considered to be the receiving district for all purposes of this chapter,...
Under 14 Del. C. Sec. 409 (a), a receiving school district, after providing the required notice, may establish and operate bus routes in the district of residence for the purpose of transporting students enrolled in the receiving district. As 14 Del. C. Sec. 414 provides that, in
the case of an intra-district choice, the district of residence shall also be considered to be the receiving district, this outcome would appear to be the same regardless of whether the choice involved was intra-district or inter-district.
4. If the answer to the above question is no, may a district elect to run such a system and have the parents pay all or part of the cost of such a system?
As the previous question was answered in the affirmative, no answer to this question is required.
5. Section 490 (b) of HB 144 provides for a stipend paid to income eligible parents.
Can a parent receive this stipend if the choice school is within the district of residence (Intradistrict)? If the answer is yes, can the district receive the stipend for providing transportation?
No, a student attending a choice school within that student's district of residence is not eligible to receive payment.. 14 Del. C. Sec. 409 (b), the codified version of Section 490 (b) of HB 144, provides:
(b) Notwithstanding the provisions of subsection (a) of this section, any student who is:
(1) Attending a school in a district other than the district of residence; and
(2) Not disqualified from receiving transportation services by virtue of the student's proximity to the school of enrollment; and
(3) Eligible for participation in the federal free lunch program administered by the Department of Public Instruction shall be entitled to receive from the State a payment equal to the average cost per student (regular or special education, as the case may be) of transportation with the district of residence, provided, however that if such student is receiving transportation services within the district of residence provided by either the district of residence or the receiving district, the payment provided for in this subsection shall be paid directly to the district providing such services.
"District of Residence" is defined as "any reorganized school district in which the parent
of a student resides." 14 Del. C. Sec. 402 (a). In the case of an intra-district choice, the district of residence is included within the definition of "receiving district" under 14 Del. C. Sec. 402 (c). However, such inclusion does not change the statutory definition of district of residence. It merely expands the definition of "receiving district." The requirement of 14 Del. C. Sec. 409 (b) (1) is clear and unambiguous. A student is not eligible to receive payment unless enrolled in a district other than the district of residence. An intra-district choice may result in a student's district of residence being considered a receiving district for some purposes, but the student continues to attend school in the district of residence.
Very truly yours,
John B. Hindman
Deputy Attorney General
APPROVED:
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Michael J. Rich
State Solicitor