Can a Virginia school district charge parents a bus fee when their child attends a specialty program outside their home school's zone?

Plain-English summary

Prince William County Public Schools (PWCS) had a network of specialty programs scattered across the division and in a neighboring division (including the Governor's School in Fairfax County). For students whose specialty program was outside their base school's zone, PWCS provided free transportation via express bus stops, with parents responsible for the trip from home to the stop. Budget pressure in 2010 led PWCS to consider discontinuing free transportation to all but three specialty programs. Delegate Jackson Miller asked whether the law allowed a fee instead of fare-free buses.

AG Cuccinelli concluded the school board cannot charge a transportation fee for specialty-program students. The Virginia Constitution (Art. VIII, § 1) mandates a free public school system, and § 22.1-3(A) makes the schools in each division "free to each person of school age" in the division. Section 22.1-6 forbids local boards from levying fees except as Title 22.1 or the State Board's regulations permit. Section 22.1-176(A) authorizes (does not require) transportation; subsection (B) provides the only fee carve-out: "extracurricular activities … which are sponsored by the pupils' school apart from the regular instructional program and which the pupils are not required to attend or participate in." The board may charge a reasonable pro-rata fee for those.

"Extracurricular" is not defined in the Code, so the AG used the dictionary definition ("outside a regular curriculum: not falling within the scope of a regular curriculum … connected with the students' school and usu. carrying no academic credit") and the State Board's consistent usage in 8 VAC 20-131-200(A). Specialty programs in PWCS deliver the standard mandatory curriculum interwoven with supplemental or complementary opportunities, and students attending them are subject to compulsory attendance laws under § 22.1-254(A). That makes the specialty program a curricular setting, not an extracurricular one, and there is no statutory hook to charge a transportation fee. A 2007 AG opinion (2007 Op. Va. Att'y Gen. 82) had already concluded that bus transportation to and from school is not a "service" within the State Board's regulation 8 VAC 20-370-10, so that route is closed too. Because the first question was no, the AG declined to answer the second (whether a board could charge for some specialty programs but not others).

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What counts as an extracurricular activity for which the board CAN charge a fee?
A: Activities sponsored by the school apart from the regular instructional program, not required to attend, typically without academic credit, organized to avoid interrupting instruction. Think clubs, after-school sports trips, optional enrichment trips.

Q: Can the board stop running buses to a specialty program entirely?
A: That question was not answered. The opinion addressed only fees, not whether the board can decline to transport at all. Section 22.1-176(A) makes transportation optional for nondisabled students.

Q: What about students with disabilities?
A: Section 22.1-221(A) requires school boards to provide free transportation to students with disabilities so they may "obtain the benefit of educational programs and opportunities."

Q: What about a regional or 'magnet' arrangement?
A: A 1987-1988 AG opinion (337) had concluded a division is not required to provide tuition or transportation for students attending a "magnet" school, with those matters reserved to cooperative agreement between participating divisions. That is the magnet-program path.

Background and statutory framework

The free-public-schools mandate in Article VIII, § 1 of the Virginia Constitution is implemented in § 22.1-3(A). The fee-restriction provision in § 22.1-6 limits a school board to fees authorized in Title 22.1 or by State Board regulation. Transportation is governed by § 22.1-176: subsection (A) makes it discretionary for non-disabled students; subsection (B) authorizes "extracurricular activities" fees with several limitations. Section 22.1-221(A) is the mandatory transportation rule for students with disabilities. Section 22.1-254(A) makes attendance compulsory.

The dictionary canon (Sansom; Orange-Madison) supplied the meaning of "extracurricular" in the absence of a statutory definition. The 2007 AG opinion on bus transportation as a "service" closed the alternative route under 8 VAC 20-370-10.

Citations

• Va. Const. art. VIII, § 1 (free public schools)
• Va. Code Ann. § 22.1-3(A) (schools free to division residents)
• Va. Code Ann. § 22.1-6 (limits on fees and charges)
• Va. Code Ann. § 22.1-176(A) (transportation authorized, not required)
• Va. Code Ann. § 22.1-176(B) (extracurricular transportation fee, only carve-out)
• Va. Code Ann. § 22.1-221(A) (mandatory transportation for students with disabilities)
• Va. Code Ann. § 22.1-254(A) (compulsory attendance)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-016-Miller.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II

900 East Main Street
Richmond, Virginia 23219
804-786-2071

Attorney General

March 18, 2010

The Honorable Jackson H. Miller
Member, House of Delegates
General Assembly Building, Room 418
Richmond, Virginia 23219

Dear Delegate Miller:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask whether a local school board may charge a fee for the transportation of a student who voluntarily enrolls in a nonrequired specialty program located outside the boundaries of the student's "base school."[1] You also ask whether a school board may charge a transportation fee for a majority of its specialty programs and provide free transportation for certain select programs.

Response

It is my opinion that a local school board may not charge a fee for the transportation of a student enrolled in a specialty program located outside the boundaries of the student's base school.[2]

Background

You relate that Prince William County Public Schools ("PWCS") offers students the opportunity to enroll in a number of specialty programs that are located throughout the school division and in a neighboring school division. You note that these programs are voluntary and offer the standard curriculum as well as supplemental or complementary educational opportunities. For some students, the specialty program may be offered at their base school. These students rely on the ordinary means of school transportation. You note, however, that some students attend specialty programs at locations outside the boundaries of their base schools. You relate that PWCS provides free transportation for these students via a network of express bus stops. You note, however, that parents are responsible for a student's transportation between home and the express stop.

As a result of budget considerations, you state that PWCS plans to discontinue free transportation to all but three specialty programs, including the Governor's School in Fairfax County. You note that if PWCS discontinues the free transportation to the Governor's School, the number of PWCS students who attend the program would decrease due to the travel distance involved.

You state that PWCS proposes to continue free transportation to certain traditional programs offered to students across the county. You relate that should such free transportation be discontinued, a number of consequences would follow: (1) the closing or repurposing of the buildings; (2) staff transfers or layoffs; and (3) the absorption of students into their base schools, possibly resulting in overcrowding.

Applicable Law and Discussion

The Constitution of Virginia mandates that the General Assembly "provide for a system of free public elementary and secondary schools for all children of school age throughout the Commonwealth."[3] In response, the General Assembly has provided that "[t]he public schools in each school division shall be free to each person of school age who resides within the school division."[4] Further, local school boards are not permitted to levy fees or charges on any pupil except as provided in Title 22.1 or by regulation of the State Board of Education ("State Board").[5]

Section 22.1-176(A) authorizes local school boards to provide transportation for the pupils they serve, but does not expressly require such transportation, except in one instance. Section 22.1-221(A) requires school boards to provide free transportation to students with disabilities so they may "obtain the benefit of educational programs and opportunities."

Although the transportation of pupils (other than students with disabilities) is optional, the General Assembly has authorized school boards to charge fees for such transportation in only one circumstance:

When a school board provides transportation to pupils for extracurricular activities, other than those covered by an activity fund, which are sponsored by the pupils' school apart from the regular instructional program and which the pupils are not required to attend or participate in, the school board may accept contributions for such transportation or charge each pupil utilizing such transportation a reasonable fee not to exceed his pro rata share of the cost of providing such transportation.[6]

The General Assembly has not defined the term, "extracurricular"; therefore, it must be given its ordinary meaning.[7] "Extracurricular" means "outside a regular curriculum : not falling within the scope of a regular curriculum … connected with the students' school and usu. carrying no academic credit."[8] This definition is consistent with the meaning ascribed to it by the State Board of Education.[9] Although the specialty programs you describe offer supplemental or complementary educational opportunities, I assume that such program opportunities are interwoven with the standard mandatory curriculum and are not separate, optional components that augment a student's instructional day or diploma requirements. In addition, although enrollment in the specialty program is optional, a student participating in the program is subject to the Commonwealth's compulsory attendance laws.[10] As such, the educational opportunities may not be characterized as "extracurricular" such that the school board may charge a fee for transportation. Accordingly, it is my opinion that § 22.1-176 does not authorize a local school board to charge a transportation fee for a student enrolled in a specialty program.[11]

Local school boards may charge fees in accordance with regulations of the State Board.[12] The State Board has authorized fees for "voluntary student activities" and provides that a local school board is not prohibited "from making supplies, services, or materials available to pupils at cost. Nor is it a violation to make a charge for a field trip or an educational related program that is not a required activity."[13] A prior opinion of the Attorney General has examined whether transportation to and from school might be a "service" for which school boards could charge and concluded that bus transportation to and from school is not a "service" within the meaning of the regulation.[14]

Conclusion

Accordingly, it is my opinion that a local school board may not charge a fee for the transportation of students enrolled in a specialty program located outside the boundaries of the student's base school.[15]

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

1. For purposes of this opinion, a "base school" is a school within which designated school boundaries a student resides.
2. Because I answer your first inquiry in the negative, there is no need to address your second question.
3. VA. CONST. art. VIII, § 1.
4. VA. CODE ANN. § 22.1-3(A) (2006).
5. See § 22.1-6 (2006).
6. Section 22.1-176(B).
7. See Sansom v. Bd. of Supvrs., 257 Va. 589, 594-95, 514 S.E.2d 345, 349 (1999); Commonwealth v. Orange-Madison Coop. Farm Serv., 220 Va. 655, 658, 261 S.E.2d 532, 533-34 (1980).
8. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 806 (1993).
9. See, e.g., 8 VA. ADMIN. CODE 20-131-200(A) (Supp. 2009) ("Extracurricular activities must be organized to avoid interrupting the instructional program. Extracurricular activities shall not be permitted to interfere with the student's required instructional activities.").
10. See § 22.1-254(A) (2006).
11. See 1987-1988 Op. Va. Att'y Gen. 337, 338 (concluding that there is no requirement that school division provide tuition and transportation for students attending "magnet" school). Tuition and transportation matters are reserved to the cooperative agreement of the participating divisions. Id. Participating school divisions may, absent an agreement to the contrary, decide to enroll and pay for fewer than the number of students for whom slots are available or withdraw from the 'magnet' program before its students complete the program. Id.
12. See supra note 5 and accompanying text.
13. 8 VA. ADMIN. CODE § 20-370-10 (2002).
14. See 2007 Op. Va. Att'y Gen. 82, 84 (interpreting § 22.1-176 and 8 VAC § 20-370-10).
15. See supra note 2.