What The Law Says About Franklin Township's Busing Fees

Kyle Stokes/StateImpact Indiana

The traffic jams caused by busing fees in Franklin Township schools in August.

Indiana law requires public school districts to provide transportation to school for foster children, homeless children, and even for students who attend private schools and live along bus routes.

But does the Indiana Constitution forbid districts from making families pay for the busing? That’s the argument in a lawsuit against Franklin Township schools which started charging families monthly fees of $50 per student to ride the bus this year.

“Transportation is part of the public education system,” Ron Frazier, the attorney representing the plaintiff in the suit against the district, tells StateImpact.

The district is downplaying Frazier’s arguments. Superintendent Walter Bourke says the district stands on solid legal ground.

So what does the law say?

The Indiana Constitution requires the state to maintain a system of schools that students can attend “without charge”:

It shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement; and to provide, by law, for a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all.

So where does transportation to and from school fit into that mandate? Indiana statute permits districts to provide busing — but doesn’t expressly require it. From Section 20 of Indiana Code:

The governing body of a school corporation may provide transportation for students to and from school.

“May,” not “shall.” The district — speaking to WRTV, which broke the story — also points to this section of Indiana law, which permits parents to pay for bus services themselves if school corporations do not provide transportation:

The parents of public school students not provided bus transportation by the school corporation may contract jointly with a school bus driver to provide transportation under a parents’ supplemental transportation contract… A parents’ supplemental transportation contract is subject to the approval of the governing body of the school corporation.

So Franklin Township’s in the clear, right?

Well, maybe not. The Indiana Attorney General’s office came out with an advisory opinion earlier this month saying fees imposed by a district to ride the school bus were unconstitutional.

According to the document from July 2010, the law provides only one way for districts to pay for busing: the School Transportation Fund, which is supported by property tax revenues. The law doesn’t provide a way for the School Transportation Fund to be supported by user fees, the opinion says:

The legislature has not provided the governing body of a school corporation with the specific authority to assess, charge, or collect a school bus rider fee from the students of the school corporation. Transportation of students to and from their respective public schools are deemed a “part of public education.” Accordingly… the school bus rider fee is unconstitutional under… the Indiana Constitution.

Is that a slam-dunk? Not necessarily. The document is just advice from the Indiana Attorney General to a state-employed accountant.

But Frazier believes the opinion indicates there’s legal momentum on his side. Frazier tells StateImpact he’s received hundreds of phone calls from other district parents, and is planning to ask a judge to turn the case into a class action within the next month.

“I don’t think this is a case that’s capable of compromise,” Frazier says. “If Franklin Township continues to do this, what’s going to happen is other school systems with financial difficulties will start to do the same.”