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Indiana Supreme Court to Hear Constitutional Challenge to School Busing Fees - Appellate Practice News

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Appellate Practice News

Posted on: Dec 2, 2014

This article was originally posted on the blog of Plews Shadley Racher & Braun LLP on Nov. 24, 2014. You can view it here or view it below.

By Todd Relue, Plews Shadley Racher & Braun LLP

On Nov. 24, 2014, the Indiana Supreme Court will hear oral arguments in the case of Hoagland v. Franklin Township Community School Corp. The case arises from the Township’s decision to contract with a private organization, the Central Indiana Educational Service Center (CIESC), to provide busing to students during the 2011-2012 school year for an annual fee. In Nov. 2011, township parents filed a class action lawsuit against the school corporation, alleging in part that these actions violated Indiana’s Constitution.

This is an appeal from the Indiana Court of Appeals’ June 10, 2014 decision, now automatically vacated, that held the Township’s actions were unconstitutional. There, the court found that the Indiana Constitution’s Education Clause, Article 8, Section 1, placed on the General Assembly, “the duty to provide for a general and uniform system of open common schools without tuition.”  (Slip. Op. 11). The court followed the standard adopted by the Indiana Supreme Court in Nagy v. Evansville-Vanderburgh School Corporation that when “the legislature … has identified programs, activities, projects, services or curricula that it either mandates or permits school corporations to undertake, the legislature has made a policy decision regarding exactly what qualifies as a part of a uniform system of public education commanded by Article 8, Section 1, and thus what qualifies for funding at public expense.” 844 N.E.2d 481, 492 (Ind. 2006). Without specific statutory authority allowing fees to be charged, only items that “are outside or expand upon those identified by the legislature—what we understand to be ‘extracurricular’—may be considered as not a part of a publicly-funded education” and subject to additional “reasonable fee[s].”  Id.

Considering Indiana’s Education Code, Titles 20 and 21 of the Indiana Code, as indicating what programs and services the legislature has determined are part of a uniform system of public education, the court found that Ind. Code §20-27-5-2 provided school corporations may transport their students to and from school. Thus, under the Nagy standard, the school corporation could not charge a fee for transportation services. This interpretation of the legislature’s position was bolstered by the 2012 amendment to §20-27-5-2, which specified that a school corporation could not charge a fee for transportation services. This amendment was adopted in direct response to the Township’s actions. Since the school corporation could not charge a fee directly, it could not accomplish the same end indirectly by having CIESC charge the fee. Thus, the Township’s actions were unconstitutional. (Slip. Op. 14-15).

The court also found that the Township could not have discontinued transportation services altogether because the school corporation had statutory obligations to transport homeless students, foster-care students, special-needs students, and in some cases even private-school students. While there was no clear statutory directive to transport all eligible students, the court found it unlikely that “the legislature meant to require our school corporations to transport these students but exclude all others.” Also, under the Nagy standard, transportation was a part of the uniform system of public education and could not be discontinued without a constitutional violation.  (Slip. Op. 15-16).

Another important issue that arose in the case was whether the Indiana Tort Claims Act (ITCA), which could bar Hoagland’s claim against the school corporation, applied to state constitutional claims. The Court of Appeals determined that it did not because the ITCA states that it “applies only to a claim or suit in tort,” but did note that it appeared to be an issue of first impression in Indiana.  Ind. Code §34-13-3-1. The court also noted, but did not address, Ind. Code §20-27-13, which outlines a process whereby a school corporation could terminate its transportation program. The court refused to address the implications of this statute and how it impacted the interpretation of the legislature’s position on transportation services because the statute had not been raised by the parties. It is possible that the Indiana Supreme Court will not be so reticent on this issue.

The oral arguments will be held at 10:30 am EST and may be viewed here.

Todd G. Relue is a member of the firm’s Education Law practice group and advises educational organizations on a variety of legal issues including school formation and charter approval, land acquisition, construction and financing, governance, replication and expansion, and sustainability.  He blogs about legal issues related to educational organizations at and tweets at @INeducationlaw.

PSRB’s Josh S. Tatum assisted counsel for Franklin Township schools by sitting on a panel for a practice argument as part of his role on the Indianapolis Bar Association’s Indiana Appellate Institute, which offers practice argument sessions before a panel of experienced appellate advocates, former judicial clerks, and law professors well-versed in the subject matter of the case and general appellate-court procedures.

This article was written by Todd Relue of Plews Shadley Racher & Braun LLP. If you would like to submit content or write an article for the Appellate Practice Section page, please email Mary Kay Price at


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