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Mt. Lebanon School District v. J.S.

Commonwealth Court of Pennsylvania

November 9, 2017

Mt. Lebanon School District, Petitioner
v.
J.S., by and through his parents H.H. and J.S., Respondents

          Argued: June 7, 2017

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE JOSEPH M. COSGROVE, Judge

          OPINION

          MARY HANNAH LEAVITT, PRESIDENT JUDGE

         Mt. Lebanon School District (District) petitions for review of an order of the Gifted Education Hearing Officer (Hearing Officer), [1] which required the District to provide a gifted student with transportation to attend an accelerated mathematics class. For the following reasons, we reverse the Hearing Officer's decision.

         The Hearing Officer found the following relevant facts, which the parties do not dispute. J.S. (Student), a seventh-grade student at Mellon Middle School, has been identified as "gifted" pursuant to Chapter 16 of Title 22 of the Pennsylvania Code, 22 Pa. Code §§16.1-16.65.[2] Student's Gifted Individualized Education Plan (GIEP)[3] includes a "two year acceleration in mathematics, " which allows him to attend a geometry class at Mt. Lebanon High School. Hearing Officer's Adjudication, 5/13/2016, at 3, Finding of Fact No. 6; Reproduced Record at 220 (R.R. __). The middle school is located approximately 1.3 miles from Student's home. The high school is an additional 0.4 or 0.6 miles away depending on the route taken.

         The District is a walking school district, meaning that it does not provide transportation to students except for those who are disabled. Student walks from his home to the middle school with his peers and then walks to the high school for the geometry class, which is held during the first period of the day. The entire walk from Student's home to the high school takes approximately 40 to 45 minutes. The District does not provide transportation for Student from the middle school to the high school. The District does, however, provide transportation for Student from the high school back to the middle school after the geometry class, so that he can get to his second period class on time. Student has missed the geometry class a few times "due to special events." Id. at 4, Finding of Fact No. 18; R.R. 221. Nevertheless, he received an "A" in the class for each marking period through the end of the third quarter of the 2015-2016 school year.

         Student, through his parents, filed a due process complaint against the District asserting that its failure to provide Student with transportation to the high school deprived him of an appropriate education in accordance with his GIEP. Student cited safety concerns as the primary reason the District was responsible for transporting him from the middle school to the high school. Student did not contend, however, that the District should provide him with transportation from his home directly to the high school. The parties proceeded to a hearing before the Hearing Officer and presented testimony and documentary evidence. The parties stipulated that Student's placement in the geometry class is appropriate.

         The Hearing Officer ruled in Student's favor and ordered the District to provide transportation for him each morning from the middle school to the high school as part of his GIEP. The Hearing Officer found that "other than a vague sense of unease, [Student's] Parents pointed to nothing concrete to suggest that Student might be unsafe traveling to, or inside, the District high school." Id. at 7; R.R. 224. Nevertheless, she concluded that the District is required to provide transportation to Student under Section 1374 of the Public School Code, [4] 24 P.S. §13-1374. In reaching that conclusion, the Hearing Officer relied on Woodland Hills School District v. Department of Education, 516 A.2d 875 (Pa. Cmwlth. 1986), where this Court stated that a school district is required to provide transportation to exceptional students unless "the distance involved is less than one and one-half mile and is not along a hazardous route." Id. at 878 n.9 (citing Section 1362 of the Public School Code, 24 P.S. §13-1362). Because the high school is 1.9 miles from Student's home, the Hearing Officer concluded that the District is obligated to transport him from the middle school to the high school. The District now petitions this Court for review.[5]

         On appeal, the District argues that the Hearing Officer erred in its construction of Section 1374 of the Public School Code, 24 P.S. §13-1374. By its plain terms, Section 1374 does not require the District to provide transportation to Student. The District maintains that it has discretion under Section 1361 of the Public School Code, 24 P.S. §13-1361, to decide whether to offer transportation to students. Consistent with that discretion, the District has decided as a matter of policy to be a walking school district. Student offered no evidence that this policy was implemented in an arbitrary or capricious manner. The District argues that the Hearing Officer "effectively made an [injunction] ruling inconsistent with the District's general transportation policy." District Brief at 13. The District further argues that the case at bar is distinguishable from Woodland Hills because the school district in that case provided transportation to all students.

         Student counters that Sections 1362 and 1374 of the Public School Code, when construed together, require the District to provide transportation to a gifted student who is required to travel more than one and one-half miles to school each day. 24 P.S. §§13-1362, 13-1374. Student acknowledges that Woodland Hills is factually distinguishable but, nevertheless, argues that "the legal question answered … in that matter provides clear direction in the instant case." Student Brief at 11. We disagree.

         The object of statutory interpretation is to ascertain the General Assembly's intent and give it effect, 1 Pa. C.S. §1921(a), and the primary indication of legislative intent is the plain language of the statute. Department of Environmental Protection v. Cumberland Coal, 102 A.3d 962, 975 (Pa. 2014). Accordingly, we begin with the language of Section 1374 of the Public School Code, which states:

Any exceptional child, who is regularly enrolled in a special class that is approved by the Department of Education, or who is enrolled in a regular class in which approved educational provisions are made for him, may be furnished with free transportation by the school district. When it is not feasible to provide such transportation the board of school directors may in lieu thereof pay for suitable board and lodging for any such child. If free transportation or board and lodging is not furnished for any exceptional child or any eligible young child as defined in the act of December 19, 1990 (P.L. 1372, No. 212), known as the "Early Intervention Services System Act, " who, by reason thereof, is unable to attend the class or center for which he is qualified, the intermediate unit shall provide the transportation necessary.

24 P.S. §13-1374 (emphasis added). By using the term "may, " rather than "shall, " the legislature has indicated that a school district can decide whether to offer free transportation to a gifted child enrolled in an approved class. If a school district elects not to provide free transportation, the "intermediate unit shall provide the transportation necessary." Id. Construing Section 1374 as imposing an obligation on a school district to provide free transportation for gifted students conflicts with the plain language of the statute.

         Likewise, Section 1362 of the Public School Code does not mandate free transportation. ...


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