ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before: ALDISERT, GIBBONS and HIGGINBOTHAM, Circuit Judges
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.
In this appeal, we are asked to review the propriety of a decision by the Board of School Directors of the Albert Gallatin Area School District (hereinafter the Board) to provide free transportation to kindergarten-age children on only a one-way basis either to or from school. The district court entered a permanent injunction against the Board ordering them to provide free transportation both ways (to and from kindergarten) for all eligible children residing in the school district commencing with the 1981-82 school year, and continuing as long as kindergarten education is provided by the school district. Because we have concluded that neither the due process nor the equal protection clauses of the fourteenth amendment to the United States Constitution mandate free round-trip busing, we will reverse the district court's order entering a permanent injunction against the Board and the Superintendent. We will, however, remand this case to the district court for its discretionary determination as to whether it is appropriate to decide the merits of this case under state law or to dismiss the state law claims without prejudice.
The Albert Gallatin Area School District provides kindergarten classes for all eligible children residing within the district. Classes are held during the regular school week at four public elementary schools with a morning and an afternoon session offered at each school.*fn1 Kindergarten children attend school for only a half-day in either the morning or the afternoon session.
The School District provides round-trip busing to elementary school children who attend the four public schools. The Board, in May of 1980, when considering a budget for the 1980-81 school year, also allocated sufficient funds to bus kindergarten children to and from their homes. At the July 1980 Board meeting, however, the Board decided not to utilize the allocated funds for round-trip busing, but, rather, to allow kindergarten students to ride to school on the regular elementary school buses for the morning session or to ride home on the elementary buses at the close of the school day. This decision meant that the School District did not have to engage additional buses and drivers especially for the kindergarten children during the middle of the day. Unfortunately, it also meant that parents of kindergarten students had to assume the responsibility of transporting their children either to or from school, depending on which session their children attended.
On August 7, 1980, a number of concerned parents with kindergarten age children filed a class-action complaint in the district court against the Board and the School District's Superintendent, Michael E. Tippett. In their complaint, as amended, the parents alleged that the Board's decision effectively precluded their children from attending kindergarten because the parents were public assistance recipients and unable to afford transportation for their children.
The district court certified a class consisting of all kindergarten-age children and their parents, past, present and future, who reside within the School District and who could not afford the cost of transporting their children to or from kindergarten. The trial judge found specifically that three members of the class received public assistance and lived at least five to six miles from the nearest school.*fn2 He further found that the children of these particular parents participated in a "home-bound Head Start Program" prior to being eligible for kindergarten and that a one-year disruption in the children's education before elementary school "would be harmful to the essential continuity of [their] development." App. at 347a. The district court concluded that "the interest which Plaintiffs seek to protect is of an important and fundamental nature." App. at 350a. The trial judge also believed that wealth-based discrimination is "highly suspect" and "requires a substantial justification by the governmental entity affecting such discrimination. . . ." App. at 354a. Finding no compelling state interest for not providing free round-trip busing, the district court declared the Board in violation of the due process and equal protection clauses of the fourteenth amendment. The district court did not reach the issue of the plaintiffs' rights under state law although the judge apparently assumed pendent jurisdiction over the state law claims.
The Constitutional Claims
Though the trial judge and plaintiffs' counsel made broad philosophical reference to the "important and fundamental nature" of education, it must be made clear that we are not here, as in many prior cases, confronted with either the deprivation of a recognized fundamental right or the exclusion of a suspect class. We do not have here a state-imposed system of racial segregation which deprives a constitutionally protected class of equal access to a public education. Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954). Nor do we have a system which denies to the school age children of illegal aliens the free public education that it provides to children who are citizens of the United States or legally admitted aliens, thereby imposing a "lifetime hardship" with the "stigma of illiteracy [that] will mark them for the rest of their lives-by having denied them any free public ...