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SCHOOL DISTRICT PITTSBURGH v. COMMONWEALTH PENNSYLVANIA (02/10/78)

decided: February 10, 1978.

SCHOOL DISTRICT OF PITTSBURGH, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF EDUCATION, RESPONDENT. JOSEPH SCOTT ET AL., INTERVENORS



Appeal from the Orders of the Secretary of Education in case of In the Matter of the Administrative Hearings under Act 372 -- School District of Pittsburgh, File No. 1974-4.

COUNSEL

Justin M. Johnson, Solicitor, with him Persifor S. Oliver, Jr., Assistant Solicitor, for petitioner.

Patricia A. Donovan, Deputy Attorney General, for respondent.

William B. Ball, with him Joseph G. Skelly, Philip J. Murren, and Ball & Skelly, for intervening respondents.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers and Blatt. Opinion by Judge Rogers.

Author: Rogers

[ 33 Pa. Commw. Page 537]

This case involving, inter alia, the Establishment Clause of the First Amendment to the Constitution of the United States,*fn1 had its origin in an amendment made to Section 1361 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. ยง 13-1361, by the Act of December 29, 1972, P.L. 1726.

Section 1361 in its original 1949 form read:

The board of school directors in any school district may, out of the funds of the district, provide for the free transportation of any resident pupil to and from the public schools and to and from any points in the Commonwealth in order to provide tours for any purpose connected with the educational pursuits of the pupils. They shall provide such transportation whenever so required by any of the provisions of this act or of any other act of Assembly.

As the result of economic and sociological forces which it is not necessary or within this writer's special competence to describe, the General Assembly was moved to amend Section 1361 by Act 91 of June 15, 1965, P.L. 133, pertinently by deleting the second

[ 33 Pa. Commw. Page 538]

    sentence thereof and adding in its place the following:

When provision is made by a board of school directors for the transportation of resident pupils to and from the public schools the board of school directors shall also make provision for the free transportation of pupils who regularly attend nonpublic elementary and high schools not operated for profit. Such transportation provided for pupils attending nonpublic elementary and high schools not operated for profit shall be over established public school bus routes. Such pupils shall be transported to and from the point or points on such routes nearest or most convenient to the school which such pupils attend. The board of school directors shall provide such transportation whenever so required by any of the provisions of this act or of any other Act of Assembly.

This amendment was challenged on State and Federal constitutional grounds and upheld in Rhoades v. Abington Township School District, 424 Pa. 202, 226 A.2d 53 (1967).

The present version of Section 1361, and the one with which we are here concerned, was the result of the extensive amendment first referred to herein, accomplished by Act 372 of December 29, 1972, P.L. 1726. The statute now pertinently reads as follows:

The board of school directors in any school district may . . . provide for the free transportation of any resident pupil to and from the kindergarten, elementary school, or secondary school in which he is lawfully enrolled, provided that such school is not operated for profit and is located within the district boundaries or outside the district boundaries at a

[ 33 Pa. Commw. Page 539]

    distance not exceeding ten miles by the nearest public highway, except that such ten-mile limit shall not apply to area vocational technical schools which regularly serve eligible district pupils or to special schools and classes approved by the Department of Education. . . . When provision is made by a board of school directors for the transportation of public school pupils to and from such schools . . . the board of school directors shall also make identical provision for the free transportation of pupils who regularly attend nonpublic kindergarten, elementary and high schools not operated for profit to and from such schools. . . .

As it happened, no children enrolled in the public schools conducted by the appellant School District of Pittsburgh (School District) attended schools located outside of the school district boundaries. As the School District describes this circumstance in its brief, the "School District has never had occasion to transport any of its regular students . . . beyond its boundaries. . . ."

As will be observed, Act 372 changed the provision of Act 91 that nonpublic school pupils might be transported by established public school routes to points near their schools to one requiring nonpublic pupils to be taken to their schools. In obedience to this change, the School District expanded its intradistrict bussing program for nonpublic school pupils. This resulted in an increase in number of nonpublic pupils furnished transportation from 700 to 3807, and an increase in annual cost to the School District of about $327,000. The School District refused to provide any ...


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