IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mt. Lebanon School District, :

Petitioner :

: CASE SEALED

v. : No. 922 C.D. 2016

: Argued: June 7, 2017

J.S., by and through his parents :

H.H. and J.S., :

Respondents :

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, J udge

OPINION

BY PRESIDENT JUDGE LEAVITT FILED: November 9, 2017

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 s tudent 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

1 The order at issue was entered following a due process hearing pursuant to Section 16.63 of Title

22 of the Pennsylvania Code, 22 Pa. Code §16.63, which provides that an impartial due process

hearing concerning the identification, evaluation or educational placement of a gifted student is to

be held be fore a hearing officer. To ensure the hearing is impartial, the hearing office r cannot be

a school district or Department of Education employee. 22 Pa. Code §16.63(m)(2). An appeal

therefrom is to be taken to a “court of competent jurisdiction.” 22 Pa. Code §16.63( l ).2

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 Ind ividualized

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 m iddle s chool is located approximately 1.3 miles fr om

Student’s home. The h igh s chool 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 m iddle s chool with his peers and then walks to the h igh s chool

for the geometry class , which is held during the first period of the day. The entire

walk from Student’s home to the h igh s chool takes approximately 40 to 45 minutes

.

The District does not provide transportation for Student from the m iddle s chool to

the h igh s chool. The District does, however, provide transportation for Student from

2 Chapter 16 of the Pennsylvania Code which governs special education defines “gifted student”

as:

(i ) A student who is exceptional under section 1371 of the School Code [Public

School Code of 1949, Act of March 10, 1949, P.L. 30, as amended ] (24 P.S.§13

- 1371) because the student meets the definition of “mentally gifted” in this section,

and needs specially designed instruction beyond that required in Chapter 4 (relating

to academic standards and assessments).

(ii) The term applies onl y to students who are of “school age” as defined under

§ 11.12 (relating to school age).

22 Pa. Code §16.1. “Mentally gifted” is further defined as “[o]utstanding intellectual and creative

ability the development of which requires specially designed progra ms or support services, or both,

not ordinarily provided in the regular education program.” Id.

3 A Gifted Individualized Education Plan is a “ written plan describing the education to be provided

to a gifted student. ” 22 Pa. Code §16.31.3

the h igh s chool back to the m iddle s chool after the geometry class, so that he can g et

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

.

N evertheless, he received an “ A ” in the class for each marking period through the

end of the th ird quarter of the 2015

- 20 16 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 m iddle s chool to the h igh s chool. Student did not contend,

however, that the District should provide him with transpo rtation from his home

directly to the h igh s chool. 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.

T he Hearing O fficer ruled in Student’s favor and ordered the District to

provide transportation for him each morning from the m iddle s chool to the h igh

s chool as part of his GIEP . T he Hearing Officer found that “other than a vague sense

of unease, [Student’s ] Parents pointed to no thing concrete to suggest that Student

might be unsafe traveling to, or inside, the District high school

. ” I d

. at 7; R.R. 224

.

N evertheless , 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 O fficer relied on Woodland Hills School

District v. Department of Education , 516 A.2d 875 (Pa. Cmwlth. 1986)

, where this

4 Public Scho ol Code of 1949, Act of March 10, 1949, P.L. 30, as amended , 24 P.S. §§1

- 101

– 27

-

2702.4

Court stated that a school distric t is required to provide transport ation 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). Becaus e the h igh s chool is 1.9 miles from Student’s home,

the Hearing O fficer 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 O f ficer erred in its

construction of Section 1374 of the Publi c School Code , 24 P.S. §13

- 1374 . B y 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 . C onsistent with that discretion, the District has decided as a matter of

policy to be a walking school dis trict. Student off ered no evidence that th is policy

was implemented in an arbitrary or capricious manner. The District argues that the

Hearing O fficer “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 distinguish able 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 acknowledge s that Woodland Hills

5 Our scope of review is to determin e whether the adjudication is supported by substantial

evidence, whether errors of law were committed, or whether constitutional rig hts were violated.

Punxsutawney Area School District v. Kanouff , 663 A.2d 831, 834 (Pa. Cmwlth. 1995).5

is factually distin guishable but

, nevertheless

, argue s 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 Educa tion, 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 m ay 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), k nown 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. C onstru ing Section 1374 as imposing an obligation6

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. Section 1362 states in pertinent part :

The free transportation of pupils , as required or authorized by

this act, or any other act, may be furnished by using either school

convey ances, private conveyances, or electric railways, or other

common carriers, when the total distance which any pupil must

travel by the public highway to or from school, in addition to

such transportation, does not exceed one and one

- half (1 1⁄2 )

miles, and when stations or other proper shelters are provided for

the use of such pupils where needed, and when the highway,

road, or traffic conditions are not such that walking constitutes a

hazard to the safety of the child, as so certified by the Department

of T ransportation....

24 P.S. §13

- 1362 (emphasis added). In short, Section 1362 specifies the means by

which a school district may furnish free transportation , such as for a gifted student

under Section 1374. Contrary to Student’s interpretation, Section 1362 does not

require a school district to provide transportation to a student who resides more than

one and one

- half miles from his school. This Court has so held:

[Section 1362 ] is a complement to other sections which permit

or require the provision of fre e transportation. Section 1362 does

no more than enumerate the means of transportation which a

school board may emp loy under certain circumstances

.... [It]

does not mandate free bus service[.]

Abrahams v. Wallenpaupack Area School District , 422 A.2d 1201, 120 4 (P a.

Cmwlth. 1980). Consistent with our holding in Abrahams , we conclude that the

Hearing Officer erred in construing Sections 1374 and 1362 to mean that a school

district must provide fr ee transportation to gifted students.7 Likewise, t he Hear ing O fficer’s reliance on Woodland Hills , 516 A.2d

875, was misplaced. In that case , the school district organized a special education

program for gifted students in one of its public school buildings and provided

transportation to both public and nonpubl ic school students who attended the

program . Subsequently, the district reorganized its program to offer the program in

each of its schools and eliminated transportation for the nonpublic school students.

In ruling that the school district was required t o provide transportation to the

nonpublic school students

, this Court relied on the fact that the school district had

elected to provid e midday transportation to all students under Section 1374 of the

School Code. Accordingly, “the ultimate responsibility of the intermediate unit to

transport exceptional children under Section 1374 ” was not an issue. Woodland

Hills , 516 A.2d at 878 n.8.

Here, by contrast, the District is a walking district that does not provide

transportation to students unless they are disabled . Therefore, Woodland Hills is

inapposite. Further, Student offered no evidence that h e is physically unable to walk

the approximately one

- half mile from the m id dle s chool to the h igh s chool or that

the route between the schools is unsafe . Hearing Officer’s Adjudication

, 5/13/2016

,

at 7 ; R.R. 224. As the Hearing Officer found, Student missed a couple of the

geometry classes , but this was due to “special events” and not to the lack of

transportation

. Id. at 4, Finding of Fact N o . 18; R.R. 221. Notably, the Hearing

O fficer also found that Student can use the computer lab or participate in sports

activities at the m iddle s chool until 7:50 a.m. and still have sufficient time to walk

to the h igh s chool before the first period. Id.

, Finding of Fact No. 19; R.R. 221.8 Finally, c onstruing Section 1374 of the School Code as authorizing, but

not mandating, a school district to provide free transportation to gifted students is

consistent with other provisions of the School Code. Section 1361(1), for example,

provides that “[t]he board of school directors in any school district may , out of the

funds of the district, provide for the free transportation of any residen t pupil to and

from the kindergarten, elementary school, or secondary school in which he is

lawfully enrolled....” 24 P.S. §13

- 1361 (1) (emphasis added). This Court has

construed th is language to mean that “[t]he power granted to school districts under

[Sec tion 1361] is plenary, absent a showing of bad faith or abuse of discretion.”

Abrahams , 422 A.2d at 1203 (citing Roberts v. Board of Directors of the School

District of the City of Scranton , 341 A.2d 475 (Pa. 1975)). Stated otherwise, a court

should not interfere with a school board’s exercise of the discretion authorized in

Section 1361 “unless the action was based on a misconception of law, ignorance

through lack of inquiry into the facts necessary for an intelligent judgment, or unless

the action is th e result of arbitrary will or caprice.” Id. “The burden of showing

such an abuse is a heavy one and rests with the party seeking the injunction.” Id

.

Here, the District, as a matter of policy, has decided to be a walking

district, and it has applied thi s rule uniformly to all students. There is no evidence

in the record that the District has implemented this policy in an arbitrary or

capricious manner. Accordingly, this Court will not interfere with the District’s

exercise of its discretion with respec t to Student’s transportation.

For these reasons, we reverse the Hearing Officer ’s order

.

_____________________________________ MARY HANNAH LEAVITT, President JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mt. Lebanon School District, :

Petitioner :

: CASE SEALED

v. : No. 922 C.D. 2016

: J.S., by and through his parents :

H.H. and J.S., :

Respondents :

O R D E R

AND NOW, this 9 th day of November , 2017, the order of the Gifted

Education Hearing Officer dated May 13, 2016, in the above

- captioned matter is

hereby REVERSED in accordance with the attached opinion.

_____________________________________ MARY HANNAH LEAVITT, President JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mt. Lebanon School District, : CASE SEALED

Petitioner :

:

v. :

:

J.S., by and through his :

p arents H.H. and J.S., : No. 922 C.D. 2016

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 J OSEPH M. COSGROVE, J udge

CONCURRING AND DISSENTING

OPINION BY JUDGE COSGROVE FILED: November 9

, 2017

I see nothing in Woodland Hills School District v. Department of

Education

, 516 A.2d 875 (Pa. Cmwlth. 1986) that suggests a school district's

decision to be a walking district also exempts it from providing transportation to the

gifted student under Section 1374 of the Public School Code of 1949. 1 As the

Majority stresses that such a distinction exists, I must dissent.

It's tough enough being twelve. Couple th at experience with placement

of this gifted student in the foreign setting of high school, where age differences

alone are super

- magnified and all

- too

- often accompanied by unpleasant interactions

1 Act of March 10, 1949, P.L. 30, as amended

, 24 P.S. § 13

- 1374.JMC

- 2

with those of the upper

- class, and interference with the edu cational process is quite

possible.

It is not clear from this record but is at least inferred that the distance

between the lower school and the high school, where this boy must walk without the

accompaniment of his peers, is at least an intimidating g auntlet. Indeed, the Hearing

Officer noted that the student, J.S., expressed a "vague sense of unease" relative to

his walking to the high school for these special classes. See Majority, slip op. at 3.

There should be nothing mysterious about a seventh grader having these feelings as

he tries to maneuver his way to this unfamiliar venue. Nor does the law require that

he actually be bullied before the district is forced to provide transportation to these

high

- level classes.

There are many "young Sheldons " 2 among us, and the legislature has

taken steps to nurture their educational talents while not placing external burdens on

them. Finding their abilities to be different from those of others, they are entitled to

the full benefit which comes with recognit ion of those differences.

But I agree with the Majority in one respect. In citing Section 1374,

the Majority adds emphasis to the last section: " If free transportation [is not

provided by the District]

... the intermediate unit shall provide the transpo rtation

necessary." 24 P.S. § 13

- 1374 (emphasis added by the Majority, slip op. at 5). In

stressing this passage, the Majority recognizes that, while it does not find the Mt.

Lebanon School District (Petitioner) responsible for providing the transportati on J.S.

requests, that transportation must nonetheless be provided by someone, and, as the

2 Young Sheldon is a fictional character from a situation comedy of the same name. He

attended high school at age 9. See http://www.cbs.com/shows/young

- sheldon/about/ (last visited

October 27, 2017); see also https://en.wikipedia.org/wiki/Young_Sheldon (last edited October 26,

2017 ).JMC

- 3

law notes, this "someone" is the intermediate unit. J.S. may not have prevailed in

his effort to have Petitioner transport him, but he is nonetheless entitled to th e

transportation he seeks. Although I disagree that Petitioner is not responsible, I

concur in this portion of the Majority opinion that this responsibility falls to the

intermediate unit.

___________________________ JOSEPH M. COSGROVE, Ju dge