12.07.2017
Article

Hearing Officer's Decision Granting Transportation for Gifted Student is Overturned by Commonwealth Court

Written by Sean A. Fields, co chair of the Education Law Group

The Big Picture...

On November 8, in the case of Mt. Lebanon School District v. J.S., the Commonwealth Court reversed a hearing officer's decision that would have required a school district that does not provide bus transportation to students to transport a gifted student from his middle school to a high school to attend a geometry class.

The court reasoned:

  • As a "walking" school district that does not provide transportation for students without disabilities, the School Code does not require the district to provide transportation to a gifted student;
  • Section 1374 of the School Code provides that the district "may" provide free transportation to a gifted student and if the district elects not to do so, the intermediate unit is required to provide transportation;
  • Section 1362 of the School Code enumerates the means that a district may use to provide transportation but does not require transportation for students residing more than one and one half miles from school.

The Close Up...

The Mt. Lebanon decision involved a seventh grade gifted student whose Gifted Individualized Education Plan (GIEP) included accelerated math instruction. As a "walking" school district, transportation was not provided to nondisabled students. As a result, J.S. was  equired to walk from his home to the district's middle school at a distance of 1.3 miles before walking to the district's high school located an additional 0.4 or 0.6 miles from the middle school for first period geometry. However, the district provided J.S. with  transportation from the high school back to his middle school.

A hearing officer concluded the district was required to provide transportation pursuant to Section 1374 of the School Code and the Commonwealth Court's decision in Woodland Hills School District v. Department of Education, 516 A.2d 875 (Pa. Cmmwlth. 1986). The court reversed the decision on the grounds that Section 1374 provides the district with the discretion to provide transportation for a gifted child in an approved class. The court also concluded that language in Section 1362 of the School Code simply enumerates the means of providing transportation for students who reside more than one and one half miles from school but does not mandate transportation. Finally, the court opined that the hearing officer misapplied the Commonwealth Court's decision in the Woodland Hills case where the court held that the district's election of mid-day transportation for public school students obligated the district to provide transportation for nonpublic students.

Despite the result in Mt. Lebanon v. J.S., the decision should not be interpreted as a "blank check" to deny transportation for gifted students. Transportation and other support services should be addressed during development, review or revision of the student's GIEP.The State Board of Education regulations require that the GIEP team determine whether a gifted student needs one or more support services during that process. With respect to transportation, Section 16.33 of the State Board of Education regulations states:

The GIEP team shall conclude that transportation to and from school psychogical services, parent counseling and education, or another service is a support service if the GIEP team determines that one of the following criteria has been met:

  1. The service is an integral part of an educational objective of the student's GIEP, without which the GIEP cannot be implemented.
  2. The service is needed to ensure the student benefits from or gains access to a gifted educational program. 22 Pa. Code §16.33(b).

In considering the Mt. Lebanon decision, districts should consider the unique facts that surrounded the case including the fact that student resided in a "walking" school district and there was no evidence presented that the student's walk from middle school to high school was unsafe. Therefore, districts should carefully consider how the legal requirements for the development, review or revision of GIEPs might require support services such as transportation depending on individual circumstances and consult with qualified counsel when necessary.

If you'd like to be added to the School Law Snapshot distribution list, please email Sean A. Fields or call him directly at (717) 718-7120.

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