PA Court: Bus Pass Is Good Enough for Your 5-Year-Old Charter School Student

On January 21, the Pennsylvania Supreme Court ruled that a district which puts its own kindergartners on a yellow bus may hand a charter school kindergartner a Pittsburgh Regional Transit pass, whereupon they can presumably jostle for space with adult straphangers, not all of whom are particularly well-behaved. Wilkinsburg School District started this silly fight in 2018 to save a measly $136,836 a year, since the state reimburses transit passes in full and school bus costs at a fraction of that. Woodland Hills did the same to roughly 140 boys at LIFE Male STEAM Academy this fall, and Clairton tried to put 5-year-olds on the PRT buses before a county judge stepped in.

Section 1726-A(a) of the Charter School Law says charter students living within 10 miles of their school "shall be provided free transportation" by their home district. A second sentence exempts elementary students living within a mile and a half of school, then adds that if a district buses its own students inside that distance, "transportation shall also be provided to charter schools under the same conditions." Section 1362, a 1949 provision that still lists "electric railways" as an option, lets districts satisfy the duty with "other common carriers."

The dubious distinction the court  drew concerns Section 1361 of the Public School Code, which requires any district that buses its own pupils to make "identical provision for the free transportation of pupils who regularly attend nonpublic" schools. Charter schools like my daughter’s Environmental Charter School are not nonpublic schools. The Commonwealth Court said as much in one line: "Because charter schools are public schools, not nonpublic schools, Section 1361 does not apply here." Propel Schools, a charter school provider, tried to explain the absurdity of such a position. "It makes no sense that the General Assembly would provide private or religious school students with the same transportation as provided to traditional public school students, but not provide the same transportation to public charter school students," its brief to the court argued.

The majority was unconvinced. Lawmakers who wanted precisely that kind of identical treatment, Justice Kevin Dougherty wrote, could have written "identical provision," as other statutes "currently provide." They wrote it in Section 1361 and left it out of the Charter School Law. The safety objections "involve policy judgments" the legislature presumably weighed when it authorized common carriers in the streetcar era, and judgments that "may appear absurd to some" do not make a statute ambiguous.

The vote for this exercise in statutory hairsplitting was 5-1. Dougherty wrote for Chief Justice Debra Todd and Justices Christine Donohue, David Wecht and Daniel McCaffery. Justice Kevin Brobson, the seventh member, did not participate. Dougherty, Donohue and Wecht are the three justices I urged fellow Democratic voters not to retain in November.

Justice Sallie Mundy dissented alone. She found Propel's reading "eminently reasonable, at the very least as reasonable as the majority's interpretation," which makes the statute ambiguous and opens the legislative history. The 1997 charter law required districts to transport charter students "on the same terms and conditions" as their own, and this court held in 2002 that the General Assembly "went to great lengths to treat the charter schools akin to private schools for purposes of transportation." Mundy adopted Judge Patricia McCullough's account of what the majority now permits: "making a five-year old take two Port Authority Transit buses to get to school, ride with complete strangers, transferring once or twice, increasing the length of her commute, and then making the child do the same thing on the way home."

Quoting Commonwealth Court Judge Stacy Wallace, Mundy warned that the reading may leave "public school students receiving demonstrably worse treatment than students attending religious schools." Nobody in the majority disputed it. Even so, the court declined to reach the question, holding Propel's constitutional claim waived below and noting it had never granted review on the issue anyway.

State Sen. Dawn Keefer, a York County Republican, is sponsoring Senate Bill 1325, which would require districts to bus charter students through eighth grade "under the same terms and conditions, including mode of transportation" as their own. House Bill 2491 stops at sixth grade. "We don't even let them go to recess by themselves," Keefer told Spotlight PA, "but we're going to let a, you know, seven [or] eight year old on a public bus?" House Education Committee Chair Pete Schweyer, a Lehigh County Democrat, accused Republicans of trying "to once again divide the charter school community from the traditional school district community."

State Sen. Judy Ward, a Blair County Republican who chairs the Senate Transportation Committee, told me that it’s clear that the state law already obligates districts to transport their students. "That should include all students who live within the boundaries of the district," she told me. "While a court ruling believes that a public bus pass for a 5-year-old covers the requirement mandated for schools, we must ask ourselves as parents, educators and lawmakers if that is an acceptable form of safe and reliable transportation for some of our youngest learners." The ruling, she said, punishes a student for a parent's choice of school — often the charters, like ECS in Pittsburgh, are among the most innovative in the district — and lawmakers "must work to fix this error."

James Traficant, my dad's old college and semipro football buddy and for 17 years Youngstown's congressman, closed his one-minute House floor speeches ridiculing big-government inanity with a line borrowed from Star Trek: "Beam me up, there's no intelligent life here." Five justices skimmed a school code that guarantees the parish school student an identical seat on the yellow bus as a public school student, decided the public charter students warrant nothing better than a ConnectCard, and then said this decision amounted to honoring the sloppy drafting of the legislators who pieced this mess together. Legislatures exist to fix such blunders, and ours meets again September 28. If they can’t figure this one out, beam me up — my little daughter’s not taking a city bus.

Oliver Bateman is a historian and journalist based in Pittsburgh. He blogs, vlogs, and podcasts at his Substack, Oliver Bateman Does the Work.