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2001 Opinions

Date:   September 5, 2001
Prepared By:   Margaret O'Sullivan Parker
Phone:   (850) 488-7707
Suncom:   278-7707
Opinion No.:   01-16
Staff Contact:
  Charlie Hood, Nancy Rivers, Diane McCain
MEMORANDUM OPINION
TO: Mr. C. Jeffrey McInnis
Anchors, Foster, McInnis & Keefe, P.A.
FROM: James A. Robinson, General Counsel
SUBJECT: Charter School Transportation and Funding Issues
RE: Your letter of July 26, 2001

QUESTION PRESENTED: What are the funding and transportation requirements related to the transportation of students attended a charter school the Okaloosa County School District?

CONCLUSION: State statutes establish both the types of vehicles in which students may be transported and the situations for which transportation funding is authorized. As public schools, charter schools are required to comply with transportation safety and funding requirements. Each question is discussed in detail herein.

DISCUSSION: Charlie Hood has forwarded your letter of July 26, 2001, on behalf of the School Board of Okaloosa County, addressing the transportation of charter schools students to this office for review and reply.

Section 228.056, Florida Statutes, establishes the operation of charter schools, which are fully recognized as public schools. According to Section 228.056(11), Florida Statutes, charter schools are exempt from all statutes of the Florida School Code, with certain exceptions, such as provisions pertaining to student health, safety and welfare. With respect to transportation issues in particular, Section 228.056(14)(c), Florida Statutes, states that:

Transportation of charter school students shall be provided by the charter school consistent with the requirements of chapter 234. The governing body of the charter school may provide transportation through an agreement or contract with the district school board, a private provider, or parents. The charter school and the sponsor shall cooperate in making arrangements that ensure that transportation is not a barrier to equal access for all students residing within a reasonable distance of the charter school as determined in its charter

As indicated in the provided documentation, a charter school intends to reimburse parents who drive their students and other students to the school in private vehicles and/or reimburse parents who contract with a third-party provider. Your inquiry covers two primary areas of concern: transportation safety and funding.

Parents frequently drive their children to school in private vehicles in the normal course of the day. Older students also drive their own vehicles. This inquiry does not concern those situations. Nor does it address whether a charter school may choose to reimburse parents on its own for transportation costs. Rather, the question focuses on whether parent-transported children may be reported by the charter school to the district for FTE funding under one of the above-listed categories, and if so, may those funds then be disbursed to the parents.

The Department of Education recently published the Charter Schools Transportation Resource Guide (Revised June 2001). This manual provides an extensive overview of transportation options for charter schools and addresses issues such as safety requirements, eligibility for transportation, estimating costs and reimbursement and parent reimbursement. I am enclosing a copy of the guide with this letter.

Many of the issues raised in your letter are addressed in the guide. I have listed your questions below, along with a response referring to the appropriate page in the guide, if applicable, and further discussion on the specific issue raised.

Question 1: Will the Florida Department of Education approve and fund student transportation FTE for students that are transported by their parents if those students are neither "physically handicapped nor "isolated" as set forth under the provisions of Section 234.02(a), Florida Statutes even if the student resides more than two miles from the school?

Answer: No. Students transported to charter schools may be included in the district's claim for transportation reimbursement from the state. As indicated on pages 12-14 of the guide, transported charter school students generate the same amount of funding as other district students. Students will only generate funding if documentation is properly maintained, and if the transportation is made under one of the statutory criteria.

There are only four exceptions listed in Section 234.02(a), Florida Statutes, that allow students to be transported in non-approved school buses:

(a) When the student is physically handicapped or isolated;
(b) When transportation is part of a comprehensive contract for a specialized educational program;
(c) When transportation is provided through a public transit system; or
(d) When the transportation of students is necessary or practical in a motor vehicle owned or operated by a school board other than a school bus, such transportation must be provided in designated seating positions in a passenger car not to exceed 8 students or in a multipurpose passenger vehicle designed to transport 10 or fewer persons which meets all applicable federal motor vehicle safety standards.

The funding of transportation is addressed in Section 236.083, Florida Statutes, which establishes an allocation formula based upon student membership in six different categories:

(a) students who live two or more miles from school;
(b) students with disabilities or enrolled in a teenage parent program, regardless of the distance to school;
(c) students in a pre-kindergarten program, regardless of distance to school;
(d) vocational, "dual enrollment" or students with disabilities transported from one school center to another;
(e) elementary school students who are subject to hazardous walking conditions as provided in s.234.021; and
(f) a pregnant student or student parent, or the child of a student parent, regardless of distance from school.

Subsection (5) of Section 236.083, Florida Statutes, further acknowledges that funding may be used to pay for transportation of students in private passenger cars when the student is isolated or disabled.

As to the whether transportation FTE can be funded for parents transporting students who are neither "physically handicapped" nor "isolated" as set forth under the provisions of Section 234.02(a), Florida, there is no authority to approve FTE outside of the statutorily authorized categories for transportation. Therefore, transportation cannot be claimed if the student does not meet those criteria, regardless of whether the student lives more than two miles away.

Question 2: Will the Florida Department of Education approve and fund student transportation FTE requested by a charter school to reimburse a student living two miles or more from the site of the charter school who is neither "physically handicapped" or "isolated" and who drives to school in a private vehicle?

Answer: No. For the same reason listed in the answer to Question 1, state-funded transportation must comply with one of the statutory guidelines. Students driving in personal vehicles are not authorized by statute to receive funding.

Question 3. Does the Florida Department of Education interpret the phrase "isolated" as used in section 234.02(a), Florida Statutes, to automatically include any and all students who are living at a distance greater than two (2) miles from a charter school site without regard to whether other school transportation is readily available and when public streets access the residential areas where these students may be living?

Answer: No. The term "isolated" is not defined in section 234.02(1), Florida Statutes. This office issued a 1997 opinion addressing charter school transportation issues and the application of the term "isolated." That opinion, which can be found in Appendix D of the enclosed guide, places a common sense interpretation on the word:

Certainly, "isolated" does not imply "all" when it comes to charter school students. We do not view "isolated" as a means to provide wholesale transportation of students in private passenger cars.

Therefore, the fact that a student lives more than two miles from a charter school site would not automatically qualify him or her to be considered "isolated."

Question 4: Would it be within the bounds of Florida law for a public school district to include in its district transportation FTE report to the Florida Department of Education a count for students attending a charter school who are neither "physically handicapped" or "isolated" in accordance with the provisions of Section 234.02(a), Florida Statutes, and who are providing their own private transportation in private vehicles even though they may live more than two (2) miles away from the charter school site?

Answer: No. Please see the discussion for Questions 1 and 2.

Question 5: Is the provision of Section 234.02(b), Florida Statutes, which apparently allows the use of motor vehicles other than school buses when that transportation is part of a comprehensive contract for a specialized education program intended to cover a charter school operation and allow charter schools to simply disregard the standard requirement of Florida law that public school students be transported on properly certified and inspected school buses? As a follow up to this question, is a charter school contract considered to be a "comprehensive contract for a specialized education program" as contemplated by the provisions of Section 234.02(b), Florida Statutes.

Answer: No. The term "specialized education program" as used in Section 234.02(b), Florida Statutes, was added by Chapter 89-101, Laws of Florida. It refers to programs such as autism centers and Department of Juvenile Justice facilities. While there is a contract between the charter school and the district, that contract is not considered to be for a "specialized education program." Section 228.056(1), Florida Statutes, which was enacted after Chapter 89-101, Laws of Florida, went into effect, does not make reference to charter schools as "specialized education programs." Rather, they are considered to be "fully recognized as public schools."

Question 6: Are there any provisions of Chapter 234 regarding school transportation that are considered to be exceptions or that override the provisions under Section 228.056(11), Florida Statutes, that specifically sets forth the requirement that charter schools not be exempt from statutes that make provisions for student health, safety and welfare?

Answer: No. Chapter 234 does not make any direct reference to charter schools. As noted above, in addition to the general requirements regarding safety statutes, Section 228.056(13)(c), Florida Statutes, directs that charter school students be transported in a manner consistent with the requirements of Chapter 234.

Chapter 7: Can a charter school make an "assignment" of student transportation revenue, at the direction of a student's parent, to a third party transportation provider without itself having a direct contract for such services with the third party provider? If such an "assignment" of funds is made, does this relieve the charter school from liability in the event of an accident if the third party provider is not transporting students on approved and certified school buses, thus effectively transferring all such liability and risk of injury to the third party provider and the student's parent?

Answer: As I understand the FTE reporting process, the charter school reports the student to the district, which in turn reports the student for transportation FTE to the Department. Funds are then distributed to the district, which forward them to the charter school to pay for its transportation needs.

As stated above, there are limited situations in which private vehicles may be used to transport children. Furthermore, Section 228.056(12)(c), Florida Statutes, does permit charter schools to contract with the school district, a private provider, or parents to provide transportation. Therefore, a charter school may contract directly with, for example, a parent to transport his or her handicapped student. This situation is addressed on page 15 of the guide.

According to Section 228.056(c), Florida Statutes, the charter school and the district must "cooperate in making arrangements that ensure that transportation is not a barrier to equal access for all students residing within a reasonable distance of the charter school as determined in its charter. To that end, as noted on page 14 of the guide, the Department encourages the districts and charter schools to work together to on funding and eligibility issues.

Several offices of the Department of Education are available to assist the district and charter school in this area: Charlie Hood of the Department's Transportation Office, Nancy Rivers of the Department's Bureau of School Business, and Diane McCain of the Choice Office. Please let me know if we may provide any further assistance on this matter.

Enclosure

Cc: Charlie Hood
Nancy Rivers
Diane McCain
Robin Safley

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