12-1300-16189-10

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

In the Matter of the Petition of Minneapolis Special School District No. 1 for a Declaration that a Department of Education Memorandum Regarding Transportation of Homeless Students is an Unadopted Rule

ORDER

By Petition filed October 1, 2004, Minneapolis Special School District No. 1 (“Petitioner”) seeks an order directing the Department of Education (“the Department”) to cease enforcement of an unadopted rule.  The Department filed a written response on November 1, 2004.  Saint Paul Public Schools (“SPPS”) was given an opportunity to submit a response because of its involvement with the Petitioner in the transportation dispute that arose from the Department Memorandum in question.  SPPS submitted its response on November 1, 2004.  The Petitioner responded on November 19, 2004.  Oral argument was held on the Petition on November 22, 2004 at the Office of Administrative Hearings.  The record closed at the conclusion of the hearing.

Allen E. Giles, District General Counsel of the Minneapolis Public Schools, 807 NE Broadway, Room 220B, Minneapolis, MN 55413-2398, represented the Petitioner.  Steven B. Liss, Assistant Attorney General, 445 Minnesota Street, Suite 1200, St. Paul, MN 55101-2131, represented the Department of Education.  Nancy L. Cameron, Assistant General Counsel, St. Paul Public Schools, 360 Colborne Street, St. Paul, MN  55102-3299, appeared on behalf of the St. Paul Public Schools.

Based upon all of the filings by the parties, the oral argument, and for the reasons set out in the Memorandum which follows,

IT IS HEREBY ORDERED THAT: 

1.               The Department of Education’s January 15, 2004, Memorandum regarding “Transportation of Students Experiencing Homelessness and Care and Treatment,” and accompanying paper entitled “Transportation of Students Experiencing Homelessness,” is not an unadopted rule.

2.               The Petition is DISMISSED.

Dated: December 14, 2004

 

                                                                

s/Steve M. Mihalchick

STEVE M. MIHALCHICK

Administrative Law Judge

NOTICE

This decision is the final administrative decision under Minn. Stat. § 14.381.  It may be appealed to the Minnesota Court of Appeals under Minn. Stat. §§ 14.44 and 14.45.

MEMORANDUM

The Petition challenges a memorandum and accompanying paper issued by the Department as an unadopted rule under Minn. Stat. § 14.381.  At issue is the Department’s January 15, 2004, Memorandum regarding “Transportation of Students Experiencing Homelessness and Care and Treatment,” and accompanying paper entitled “Transportation of Students Experiencing Homelessness” (the “Transportation Memorandum”)[1]  The Petitioner characterizes the Transportation Memorandum as the “Homeless Student Transportation Policy.”  Specifically, the Petitioner objects to the Department’s allocation of transportation responsibilities among districts when a student is temporarily placed in a homeless shelter located in a school district other than the district of the student’s school.  The Petitioner argues that the Department’s Transportation Memorandum is inconsistent with the provisions of both state and the federal McKinney-Vento Homeless Assistance Act governing transportation of homeless students.[2]  The Petitioner also argues that the Transportation Memorandum places an unfair burden on the Minneapolis School District because it has a disproportionately high number of students placed in homeless shelters within Minneapolis who attend school in another district.

The Department responds that the Transportation Memorandum is consistent with the plain meaning of the state statutes and complies with federal law.[3]  The Department points out that the federal government has assured the Department that the guidance contained in the Transportation Memorandum meets federal requirements.[4]  It also points out that no other school district has challenged the Department’s restatement of state statutes concerning the allocation of transportation responsibilities for students living in homeless shelters.  In fact, several other districts have submitted information in support of the Transportation Memorandum.  Moreover, evidence presented by the Department and SPPS strongly indicates that Minneapolis would be better off financially under the interpretations of Transportation Memorandum than under the Petitioner’s proposed allocation of transportation responsibilities.

Despite arguments as to the legality and reasonableness of the policies underlying the Department’s interpretation of laws as set forth in the Transportation Memorandum, those policy issues are not relevant to the question of whether the Transportation Memorandum constitutes an unadopted rule. 

A rule is defined as “every agency statement of general applicability and future effect . . . adopted to implement or make specific the law enforced or administered by that agency or to govern its organization or procedure.”[5]  Generally, when an agency’s interpretation of a statute in a written directive coincides with the plain meaning of that statute, the agency is not deemed to have engaged in rulemaking.[6]  In other words, if an agency statement is consistent with the plain meaning of the statute interpreted, the agency action is authorized by the statute itself and the fact that no rule was adopted does not render the statement invalid.[7]  However, when an agency’s announced policy is inconsistent with the statute or a rule, the courts have often invalidated that policy.[8]  And where the policy makes new law without the public input required by rulemaking under the APA, the policy will be invalidated.[9]  The question presented is whether the Transportation Memorandum issued by the Department interprets the statutes consistent with their plain meaning.

The Department argues in its Response that the Transportation Memorandum simply restates state law concerning transportation of homeless students.  The transportation requirements for students placed for care and treatment are in Minn. Stat. §§ 125A.15 (students with disabilities) and 125A.51 (students without disabilities).  The Transportation Memorandum states that “[i]n both cases, the care and treatment laws provide that the district where the student is temporarily living would be responsible for transportation.”[10]

Minn. Stat. § 125A.15 provides, in relevant part, that:

The responsibility for special instruction and services for a child with a disability temporarily placed in another district for care and treatment shall be determined in the following manner:

. . .

(c)  When a child is temporarily placed in a residential program for care and treatment, the nonresident district in which the child is placed is responsible for providing an appropriate educational program for the child and necessary transportation while the child is attending the educational program.

Similarly, Minn. Stat. § 125A.51 provides that:

The responsibility for providing instruction and transportation for a pupil without a disability . . . who is temporarily placed for care and treatment . . . must be determined as provided in this section.

. . .

(e)  When a child without a disability is temporarily placed in a residential program for care and treatment, the district in which the pupil is placed must provide instruction for the pupil and necessary transportation while the pupil is receiving instruction . . . .

Both statutes provide that the district in which the care and treatment facility[11] is located is responsible for the transportation, just as the Department states in its Transportation Memorandum.[12]

The Petitioner argues that the Transportation Memorandum could not be an interpretation of the plain meaning of the statute, because the statutory language is vague.  The Petitioner states that the care and treatment statutes do not say anything about having to transport a student across school district boundaries.  The Petitioner further argues that “[a]t the very least, the care and treatment statutes are ambiguous as to the obligation to transport students across district lines.  Section 125A.15 and 125A.51 can be read to either require transportation within a district or between districts.”[13]  While the Petitioner’s argument is understandable, due to the complexity and recent changes in the law, upon careful analysis, the statutory responsibility for transporting homeless students is clear and the Department simply restates it.  Both of the care and treatment statutes provide, unequivocally, that the district in which the pupil is temporarily placed must provide the necessary transportation.  If the Legislature had intended to limit that transportation to a site within the district it could have done so.[14]  It did not do so, and the ALJ will not find a requirement where the Legislature has not chosen to include one.  In restating the state law, the Department also did not add a requirement that was not contained within the statutes themselves.

The Petitioner also argues that the Transportation Memorandum is an unadopted rule because the Memorandum “does not merely offer guidance to local districts or simply express the Department’s opinion.  Rather, it purports to state a requirement which is binding on school districts throughout the state.”[15]  The Department agrees that the Memorandum contains requirements that are binding on school districts and have the force and effect of law, because the Memorandum is simply restating state law.[16]  The ALJ concurs.

Finally, the Petitioner argues that the Department “knew that legislation was needed to implement its proposed homeless student transportation policies,”[17] and presents information concerning the Department’s recent legislative initiatives as evidence.[18]  This argument is without merit.  The Department’s letter describing its legislative initiatives actually provides credence to its argument that state law currently contains the transportation requirements restated in the Transportation Memorandum.  The Department proposes to change the law to require “districts enrolling homeless students to provide the transportation, unless the enrolling district and the district where the shelter is located agree that the district where the shelter is located shall provide the transportation.”[19]  This is consistent with the Department’s stance that the law currently requires the district where the shelter is located to provide the transportation, rather than the district where the student is enrolled.

The information provided by the Department in the Transportation Memorandum concerning the transportation of homeless students comports with the plain meaning of the statutes.

S.M.M.