St. John Vianney School v. Board of Educ. of School Dist. of Janesville, 83-087

• Decision Date: 15 June 1983
• Docket Number: No. 83-087,83-087
• Citation: 114 Wis.2d 140,336 N.W.2d 387
• Parties: , 12 Ed. Law Rep. 549 ST. JOHN VIANNEY SCHOOL, Nativity of St. Mary's School, St. Patrick's School, St. Paul's Evangelical Lutheran School, St. William's School, Karen M. Roberson, Kevin C. Farley, Mary E. Farley, William B. Schweder, Kathleen A. Schweder, Mary A. Tegt, Nancy S. Arnold and Leland R. Arnold, Petitioners-Respondents, v. BOARD OF EDUCATION OF SCHOOL DISTRICT OF JANESVILLE, Appellant. *
• Court: Wisconsin Court of Appeals

Page 387

336 N.W.2d 387

114 Wis.2d 140, 12 Ed. Law Rep. 549

ST. JOHN VIANNEY SCHOOL, Nativity of St. Mary's School, St Patrick's School, St. Paul's Evangelical Lutheran School St. William's School, Karen M. Roberson, Kevin C. Farley Mary E. Farley, William B. Schweder, Kathleen A. Schweder Mary A. Tegt, Nancy S. Arnold and Leland R. Arnold, Petitioners-Respondents, v. BOARD OF EDUCATION OF SCHOOL DISTRICT OF JANESVILLE, Appellant. ^*

No. 83-087.

Court of Appeals of Wisconsin.

Submitted on Briefs May 13, 1983.

Opinion Released June 15, 1983.

Opinion Filed June 15, 1983.

T.P. Bidwell and Bidwell & Haakenson, Janesville, for appellant.

Thomas S. Hornig and Brennan, Steil, Ryan, Basting & MacDougall, S.C., Janesville, for petitioners-respondents.

Bronson C. La Follette, Atty. Gen., and Daniel D. Stier, Asst. Atty. Gen., and Mary Brooks Fraser, Legal Counsel, Dept. of Public Instruction, Madison, for amicus curiae State Superintendent of Public Instruction.

James F. Clark and Michael J. Julka and Isaksen, Lathrop, Esch, Hart & Clark, Madison, for amicus curiae The Wisconsin Ass'n of School Boards, Inc.

Before GARTZKE, P.J., DYKMAN, J., and W.L. JACKMAN, Reserve Judge.

GARTZKE, Presiding Judge.

Plaintiffs are five private schools located in the City of Janesville and the parents of five children attending those schools. They seek mandamus requiring the Board of Education of the School District of Janesville to amend its transportation policy to provide that all children in Janesville who live more than two miles from school shall be transported by school bus with door-to-door service. The board has appealed from a judgment directing that if the board uses school bus service to transport public elementary school children who live two or more miles from their public schools, then the board must provide similar transportation service to all private elementary school pupils who live two or more miles from their private schools. We reverse.

The dispositive question is whether the board's transportation policy violates the "reasonable uniformity" requirement in sec. 121.54(1), Stats. ¹ The board provides free school bus service for all public and private elementary school children who live two or more miles from their school, except for 200 private school students who are provided free transportation through a city bus system or parent/guardian contracts. We conclude that the "reasonable uniformity" requirement has not been violated.

The relevant facts are undisputed. Before the 1982-83 school year, the Janesville Board of Education provided free transportation by means of a private school bus company for all elementary school children living in the city two miles or more from their public or private school. Describing that transportation as "yellow school bus" service, the trial court found it was substantially door-to-door, with some students having to walk short distances to a morning pick-up point and from a drop-off point at the end of the school day.

To achieve a $25,000 saving for the 1982-83 school year, the board adopted a new transportation policy for children residing in the city. The board provided free school bus service for children attending public or private schools in kindergarten through grade six who lived in the Quality Inn, Briarcrest, Royal Oaks, Falling Creek and Highway 51 North areas. ² It provided free transportation to all other public and private school children in those grades living in the city and two miles or more from school, either through the Janesville Transit System buses or through an individual contract with the child's parent or guardian.

The trial court found that all elementary public school children in Janesville live two miles or less from their schools, except those children living in the Quality Inn, Briarcrest, Royal Oaks and Falling Creek areas. ³ Consequently, under the new policy all public school children attending grades kindergarten through six living two or more miles from their schools are transported by school buses, and all private school children in the same grades living in the Quality Inn, Briarcrest, Royal Oaks and Falling Creek areas have the same school bus service. About 200 other private school students live two or more miles from their schools and are not transported by school buses but must use the city bus or may be transported to and from school pursuant to a contract with their parent or guardian.

The trial court held that for the school board to possess the "city option" to provide transportation to school children under sec. 121.54(1), Stats., which in turn must be applied with "reasonable uniformity," city bus service must be "available" to all pupils in Janesville. It could not decide from the facts of record whether that service was "available" (in the sense of reasonably accessible and obtainable) to every pupil in Janesville. Accordingly, the court could not decide whether the city option existed. It therefore assumed that the board possessed the option to transport pupils under sec. 121.54(1), and proceeded to examine the facts in light of the statutory requirement of "reasonable uniformity in the transportation furnished."

The trial court said that under the new policy, private school children who must use city buses are exposed to greater hazards than children who enjoy substantially door-to-door service via school buses. School bus service, in the court's view, is more reliable. It said that city bus schedules and routes are established for the general public but school bus schedules and routes are designed to accommodate the schools and their hours. Some private school students must transfer from one city bus to another at a downtown Janesville transfer site. Comparing school bus and city bus service, the court concluded that the new policies of the school board do not provide "reasonable uniformity in the transportation furnished" as mandated by sec. 121.54(1), Stats., and therefore entered the judgment appealed from.

1. Statutory Context

The "city option" under sec. 121.54(1), Stats., and its "reasonable uniformity" provision must be seen in the context of the state's general educational policy on free transportation of school children. We therefore examine the context for the particular "reasonable uniformity" requirement applicable here, and other "reasonable uniformity" requirements in sec. 121.54.

Stated broadly, ⁴ under sec. 121.54(2)(a) and (b), Stats., the general educational policy of this state requires school boards to provide free transportation to and from school for elementary and high school pupils who reside two or more miles from their school, public or private. ⁵ O'Connell v. Bd. of Ed., Jt. Dist. # 10, 82 Wis.2d 728, 730-31, 264 N.W.2d 561, 562-63 (1978). The major exceptions to this policy apply to city pupils: First, a school board need not provide transportation to pupils residing in cities, unless the pupil's school is located outside the city but within the boundaries of the school district or unless the city is of the first, second or third class with a population exceeding 40,000. Sec. 121.54(1), first and third sentences. Second, a school board need not provide transportation to pupils in a city of the first, second or third class with a population exceeding 40,000 if transportation for such pupils is available through a common carrier of passengers operating under sec. 85.20, Stats., or ch. 194, Stats. Sec. 121.54(1), third sentence. ⁶

School boards which must provide transportation for pupils who reside two or more miles from school possess the following options: ⁷

First, a school board may elect to provide transportation for pupils who reside less than two miles from school, "but if transportation is provided for less than all such pupils there shall be reasonable uniformity in the minimum distance that pupils attending public and private schools will be transported." Sec. 121.54(2)(c), Stats.

Second, a board may elect to provide transportation for pupils residing in the district and attending summer classes, and "[i]f the school board provides transportation for less than all pupils, there shall be reasonable uniformity in the minimum and maximum distances pupils are transported." Sec. 121.54(4)(a), Stats.

Third, a board may provide transportation "regardless of distance" for children with exceptional educational needs under certain circumstances. Sec. 121.54(4)(b), Stats.

Fourth, a board of a district operating high school grades may provide certain pupils with transportation to vocational, technical and adult education schools outside the district, unless the distance between the pupil's home and the school is more than fifteen miles, with exceptions. Sec. 121.54(5), Stats.

Fifth, a board may provide transportation for pupils in connection with extracurricular activities under certain circumstances. Sec. 121.54(7), Stats.

A separate option is possessed by city school boards which, by virtue of sec. 121.54(1), Stats., need not provide transportation for city pupils. Under the so-called "city option," a board may elect to provide transportation for pupils residing and attending a school in a city. Sec. 121.54(1), first and second sentences; Morrissette v. DeZonia, 63 Wis.2d 429, 439, 217 N.W.2d 377, 382 (1974). The board does not possess the option, however, in a city of the first, second or third class having a population exceeding 40,000, "unless transportation for such pupils is available through a common carrier of passengers operating under s. 85.20 or ch. 194." Sec. 121.54(1), second and third sentences. If the "city option" is exercised, "there shall be reasonable uniformity in the transportation furnished such pupils whether they attend public or private schools." Sec. 121.54(1), second sentence.

Conditioning the option on the availability of common carrier passenger service makes sense. It is that availability which exempts the city school board from the...