Appeal from the Order of the Department of Education in the case of Re: 1983-84 Provision of Secondary Education to Certain School-Age Residents of Wayne Highlands School District Previously Assigned to the Hancock High School, Hancock, New York, dated August 24, 1983.
Paul L. Stevens, with him, Lee Krause, Curtin and Heefner, for petitioner.
Phillip A. Ayers, Counsel, with him, John A. Alzamora, Senior Counsel, for respondent.
Leonard Rieser, for intervenors, James Barton, et al.
Judge Williams, Jr. and MacPhail and Senior Judge Barbieri, sitting as a panel of three. Memorandum Opinion by Judge Barbieri. Judge Rogers did not participate in this decision.
Petitioner, Wayne Highlands School District (District), seeks here review of an adjudication by Respondent, the Pennsylvania Department of Education (Department), requiring the District to admit thirteen (13) ninth-grade students (Intervenors), all of whom are District residents, to the District's high school and provide them with transportation thereto, for the 1983-84 school year.
Intervenors reside in the northern portion of the Wayne Highlands School District. In the past, most students of high school age from this area of the District have been assigned to the Hancock High School, a public secondary school located in Hancock, New York. Hancock High School accepts these students in exchange for payment from the District. Students residing in other portions of the District have traditionally been assigned to Honesdale High School, the District's own school. On August 24, 1983, the Department of Education issued an order in favor of Intervenors' right to attend Honesdale High School. Petitioner subsequently filed a Petition for Review and an Application for Stay/Supersedeas Pending
Action on the Petition for Review. On September 1, 1983, Judge Wilson Bucher denied the Application for Stay/Supersedeas.
Section 1301 of the Public School Code of 1949,*fn1 provides, in pertinent part: "Every child, being a resident of any school district, between the ages of six (6) and twenty-one (21) years, may attend the public schools in his district, subject to the provisions of this act. . . ." (Emphasis added.) Section 1315,*fn2 which governs assignment of students to a school in another state, provides:
Where any child of school age in any school district resides one and one-half miles or more by the nearest traveled road from the nearest public elementary school or three miles or more from the nearest high school in the district, such child unless proper free transportation is furnished to a suitable school in this Commonwealth may on the request of his parents or legal guardian be assigned by the board of school directors to a more convenient school in another state . . . (Emphasis added.)
Under Section 1315, then, a student can be reassigned out of state only on the request of his parents or his legal guardian. No such request ...