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2001 Opinions

Date:   November 27, 2001
Prepared By:   Margaret O'Sullivan Parker
Phone:   (850) 488-7707
Suncom:   278-7707
Opinion No.:   01-24
Staff Contact:   Charlie Hood
MEMORANDUM OPINION
TO: Frank Kruppenbacher
General Counsel, Orange County School District
FROM: James A. Robinson, General Counsel
SUBJECT: Two-mile measurement for determining bus service
RE: Your October 16, 2001 letter

QUESTIONS PRESENTED:

  1. Is there such a thing as a "waiver" under Section 236.083, Florida Statutes? May it be granted by the School Board? If it is granted, are there any economic ramifications to the school district?

  2. If the School Board decides to provide service to those students residing within Stoneybrook East and more than two miles from school, will the state reimburse the School Board for such trips.

CONCLUSION: For the purposes of state funding, there is no waiver to allow the claim of transportation funds for students who do not meet the funding criteria. If the district determines that the students live less than two miles from school and are not otherwise qualified, it may not claim them for Full Time Equivalent (FTE) funding purposes. A school district may choose to provide service to students who do not qualify for funding, at its own expense, and report them as "locally funded." As to the second question, if district does not report the students for FTE funding, based upon its determination that the pedestrian entry point of their residences is less than two miles from school, then the state is not authorized to provide reimbursement for services to those students. The measurement of the two mile distance is defined in rule and based upon the application of the rule to the particular circumstances at hand.

DISCUSSION:

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:

  1. students who live two or more miles from school;
  2. students with disabilities or enrolled in a teenage parent program, regardless of the distance to school;
  3. students in a pre-kindergarten program, regardless of distance to school;
  4. vocational, "dual enrollment" or students with disabilities transported from one school center to another;
  5. elementary school students who are subject to hazardous walking conditions as provided in s.234.021; and
  6. a pregnant student or student parent, or the child of a student parent, regardless of distance from school.

Subsection (a) of the statute is the only provision with a distance limitation. If the students qualify under the other provision of the statute, the distance to school is not relevant.

School districts must report all students that receive transportation. Attached is an excerpt from the Department's manual of information data base requirements, designated as "Volume 1: Automated Student Information System: Automated Student Data Elements." The data element in the transportation category must be listed in one of seven codes. As the manual indicates, only five of the codes are eligible for funding. The other codes represent locally-funded transportation services. The Department does not typically review or audit these reported categories. They may be audited by other entities, however, including the State Auditor General.

For the purposes of state funding, there is no waiver that may be granted to allow the claim of transportation funds for students who do not meet the statutory criteria1 . If the school board determines that the students live within the two-mile limit and are not otherwise qualified, it may not claim them for FTE funding purposes.

A school district may choose to provide service to students it determines to be within the two-mile zone, at its own cost, and report them as "locally funded." As the district would not receive state monies for these students, other sources of funds would have to be found on the local level.

As to the second question, if the district does not report the students as living two or more miles from school, based upon its determination that the pedestrian entry point of their residences is less than two miles from school, then the state is not authorized to provide reimbursement for services to those students.

Your letter also asked for comment on the issues raised by the residents of the Stoneybrook subdivision. The November 5, 2001, response to our request for more information indicates some evidence that certain students within the subdivision should continue to receive bus service.

The circumstances of each restricted subdivision or community should be taken into account when measuring the distance. Factors such as deeded access to the interior roads, the pickup locations (at the gate or at bus stops within the area), or existence of a right-of-way will vary for each situation.

Our initial understanding of the situation was that students were picked up at the entrance of the subdivision and measurement of the two mile distance was made from that point. However, your response indicates that the buses drive through the interior of the subdivision to pick up students. The district currently claims FTE for eligible students, presumably those whose homes are more than two miles away from school. Further, the district has deeded rights over the community's private road system and has access to the subdivision "as if it were a public right of way." This is different from a more typical situation at a subdivision or apartment complex where the area is gated, there is only one entrance, and/or the buses do not have right-of-way access to the internal roads.

The standard for measuring the pedestrian entry point (where it meets the public right-of-way) is established in Rule 6A-3.001(3), Florida Administrative Code. This rule does not define the term "right-of-way." However, if roads are traversed by the district without impediment through deeded access and treated as if they are a right-of-way, the addition of a third gate would seem to be of no consequence. As we understand the facts, busing service has been provided to children in the subdivision who live more than two miles away from the school as measured from their homes, not as measured from the gate.

Accordingly, we see nothing that would clearly dictate a change in circumstances from the current provision of bus pickup and reporting of FTE as described in your letter.

The safety of students when traveling to and from school is an important concern to the Commissioner of Education. As indicated in our September 4, 2001, letter, the staff of the Department's Office of School Transportation Management is always available to assist districts and parents in addressing transportation issues.

1 The Commissioner of Education's authority to waive certain statutes under Section 229.592(9), Florida Statutes, specifically excludes allocation and financial reporting requirements.

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