SCHOOLS AND SCHOOL BUSES ‑- REGULATING USE OF
The state board of education lacks authority to adopt rules having the force and effect of regulations on the use of school buses and they should be regarded as advisory only.
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April 9, 1956
Honorable Pearl A. Wanamaker
State Board of Education
Olympia, Washington Cite as: AGO 55-57 No. 242
Dear Mrs. Wanamaker:
In your letter of March 26, 1956, you enclosed a copy of school bus usage regulations adopted by the state board of education which became effective July 1, 1955. The state board requests our opinion on these regulations.
In our opinion the state board of education lacks the authority to adopt rules having the force and effect of regulations on this subject and they should be regarded as advisory only.
RCW 28.58.100, which prescribes the general powers of boards of directors of all classes of school districts, provides in part:
"Every board of directors, unless otherwise specially provided by law, shall:
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[[Orig. Op. Page 2]]
"(11) Provide and pay for transportation of children to and from school whether such children live within or without the district when in its judgment the best interests of the district will be subserved thereby, but the board is not compelled to transport any pupil living within two miles of the schoolhouse."
If the state board has authority to regulate the use of school buses it must be found in RCW 43.63.140 which provides in relevant part:
"The state board of education shall:
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"(6) Prepare an outline course or courses of study for the kindergarten, elementary school, junior high school, and high school departments of the common schools, and prescribe such rules for the general government of the common schools, as shall secure regularity of attendance, prevent truancy, secure efficiency, and promote the true interest of the common schools;"
Our statutes provide that boards of directors of school districts are required to enforce the regulations of the state board of education. The pertinent inquiry is whether or not the state board acted within its authority in promulgating regulations pertaining to use of school buses.
From 1909 until 1955 local boards were operating their school transportation systems as they saw fit. In some cases both the limitations of law and the dictates of reasonable judgment were exceeded. Uniform policies in regard to control of school transportation equipment seldom existed. Considerable pressure was exerted on many school boards at the community level to liberalize and expand the use of school buses. The adoption of these regulations by the state board was an attempt to supply the answer to what many school people regarded as an important problem‑-how to achieve some standard of uniformity for the use of school buses throughout the state.
[[Orig. Op. Page 3]]
We cannot believe that the statute directing the state board to prescribe rules for the general government of the common schools as shall promote the true interest of the common schools constitutes authority to prescribe detailed regulations for the use of school buses.
Transportation needs of individual districts are infinitely varied. Considerations such as location, population, terrain, climate, size and facilities of the district must be taken into account. We are advised that forty-two percent of the school districts of the state have a school population of 100 or less. We do not feel the legislature ever intended to delegate to the state board authority to prescribe detailed rules for use of school buses applicable to every school district of the state. We think it impractical to draft comprehensive rules on this subject which reasonably and equitably would meet the varied needs of the various school districts.
In our judgment the responsibility of prescribing rules defining uses to which school buses may be devoted has been delegated by the legislature to the local boards. The duty of providing school transportation is specifically that of the local districts. The language authorizing local boards to exercise their judgment as to what will subserve the best interest of their districts, while not directly applicable to the precise problem, does provide an indication of the legislative intent.
The grant of authority to the local boards must be confined to the standards prescribed by the statute. The statutory standard is contained in the words "transportation of children to and from school." To determine the latitude available to local boards it is first necessary to define the word "school."
We are convinced that the legislature had in mind a more inclusive meaning than schoolhouse. The fact that the statute employs the term "school" as above quoted and uses the word "schoolhouse" in connection with the two-mile provision in the same sentence is, in our view, significant.
"School" is a generic term and denotes an institution for instruction or education and is not measured by the walls of a building. State v. Kalaher, Wisc. 129 N.W. 1060.
[[Orig. Op. Page 4]]
Having determined that the local boards must decide where their buses may travel we offer the following counsel and suggestions for their consideration:
1. School buses may not be leased or loaned to individuals or organizations. See the opinion of this office to the governor, dated July 11, 1942, which denied such authority even for the purpose of providing farm labor transportation during the war emergency.
2. No charge may be made of the passengers. School buses are licensed upon a tax-exempt basis under RCW 46.16.020. To charge a fare would cause such vehicles to acquire a "for hire" status as defined by RCW 46.04.190.
3. Trips outside the district must have the specific authorization of the local board. To justify such trips the board should find:
(a) That the purpose of the trip is to permit the students to participate in a school activity;
(b) that the school's participation is such activity is sponsored, directed and supervised by school district authorities as a definite part of the curriculum or educational program of the district; and
(c) the student participants to be transported must be required to participate in the activity as a part of the curriculum or educational program.
4. A substantial portion of the cost of purchase and operation of school buses comes from state funds. This money comes from taxpayers irrespective of whether or not their children use such school transportation facilities.
5. Local boards should adopt written rules for their own districts which define the school transportation program.
By way of illustration, a district board may make a formal policy determination that all regularly scheduled league football and basketball [[Orig. Op. Page 5]] games are an integral part of the high school physical education program and that participation of the school band at a Memorial Day parade and at a community festival in neighboring towns is a recognized part of the music department curriculum. In such situations the student participants in these activities should be entitled to be transported in district buses if the local board decides to do so.
We have every confidence that the primary consideration of school directors has been and will continue to be the best interest of the school children. We share what we conceive to be the view of the legislature: that local boards of school directors should manage the transportation systems of their districts, that they will exercise prudence and good judgment and with a full awareness of their responsibilities.
We are submitting a copy of this opinion to the Legislative Council because we feel this subject is deserving of its review and careful consideration.
We sincerely hope the foregoing comments will prove helpful.
Very truly yours,
ANDY G. ENGEBRETSEN
Assistant Attorney General