The Honorable Tom Courtway State Representative P.O. Box 56 Conway, Arkansas 72033-0056
Dear Representative Courtway:
This is in response to your request for an opinion on two questions concerning school buses or other vehicles used to transport children to or from school and/or school-related activities. Your questions are as follows:
1. Whether a school district may purchase a bus for the purpose of transporting students to and from extra-curricular activities (such as sporting events) and the bus not be in the color scheme of national school bus yellow? In other words, under Arkansas law is it permissible for a school district to purchase or lease a bus for use by its athletic teams, band, or other extra-curricular activities which is not `school bus yellow?'
2. Whether the state specifications for school buses apply to buses or other vehicles used to transport students to or from extra-curricular activities of a school district.
RESPONSE
Although the issue is not entirely clear from a review of Arkansas law, it is my opinion that the answer to your first question is "no." A school district may not purchase or lease a bus for use in connection with student extra-curricular activities if the bus is not "national school bus yellow." In my opinion the answer to your second question is "yes." Although this conclusion does not appear readily from a review of the statutes and regulations, the Department of Education interprets the applicable specifications as applying to buses used in connection with extra-curricular activities and this interpretation will be upheld by a court unless "clearly wrong."
Question 1 — May a school district purchase a bus for the purpose oftransporting students to and from extra-curricular activities (such assporting events) and the bus not be in the color scheme of national schoolbus yellow?
In my opinion the answer to this question is "no." It should be noted as an initial matter that state law governs your specific question about thecolor of school buses. Federal law also governs the specifications of buses purchased or leased by school districts, but the federal specifications do not address the color of the buses.
A quick summary of the parameters of the federal law will be helpful. Federal law prohibits a motor vehicle dealer from selling a new vehicle which seats a driver and more than ten passengers1 to a school district if the vehicle is likely to be used significantly to transport students to or from school or an event related to school, unless the vehicle meets the federal specifications for "school buses."49 U.S.C. §§ 30125 and 30112. See also 49 C.F.R. § 571 et seq., and Op. Att'y Gen. 95-290. The federal law clearly applies to vehicles used for extra-curricular activities. Motor vehicle dealers are subject to civil penalties for violation of the federal law. See49 U.S.C. § 30165 and National Highway Traffic Safety Administration, "NHTSA Announces Penalties for Selling Vans as School Buses" (http://www.stnonline.com/core2_files/bbs/van/delrvanfine.htm).
In response to your first question therefore, any "school bus" as defined by federal law, "purchased" or "leased" by a school district must comply with federal specifications. The color of school buses, however, is not governed by federal specifications. This requirement is found in the state law specifications for school buses. See "Arkansas Department of Education Specifications Governing School Bus Design" (1994). Section 10.01 of these specifications provides that "Chassis, including wheels and front bumper, shall be black; hood, cowl and fenders shall be national school bus yellow." In addition, section 42.01 of the specifications provides that "the school bus body shall be painted uniform color, National School Bus Yellow."
A question arises however, as to whether these specifications apply to buses or other vehicles used only to transport students to or from extra-curricular activities. (This is in fact the second question you pose.) The federal specifications clearly apply in such instance. The state specifications do not address this question and do not generally define the term "school bus."2
The state specifications state that they are adopted under the authority of A.C.A. §§ 6-21-301, -304 and -305. That subchapter is entitled "Acquisition of Commodities Generally," and provides that local school boards shall have the exclusive jurisdiction for the purchase of "Types A, B, C, and D school buses." A.C.A. § 6-21-304(b)(1) (Supp. 1997). The same statute defines and distinguishes the different "types" of school buses according to their body type, gross weight, and engine placement.See A.C.A. § 6-21-304(c)(1), (2), (3) and (4). Each is defined as being designed for carrying more than ten persons. Id. This same statute also gives the Department of Education the authority to draw up the minimum specifications for "all school buses." See A.C.A. § 6-21-304(b)(2). Other statutes also empower the State Board of Education in this regard. See A.C.A. § 6-19-102(e) ("The buses shall be of such specifications as may be prescribed by uniform rules and regulations of the State Board of Education"); and A.C.A. § 6-19-111(a) ("The State Board of Education . . . shall adopt and enforce regulations not inconsistent with this act to govern the design and operation of all school buses used for thetransportation of school children when the buses are owned and operated by any school district or privately owned and operated under any contract with any school district in this state.") (Emphasis added).
Despite the lack of a specific written regulation in this regard, it is my understanding that the Department of Education interprets the state specifications as applying to all vehicles (of the requisite capacity) used to transport students to and from school or school-relatedactivities. The interpretation of an administrative agency charged with the enforcement of a statute is highly persuasive, and will be upheld by the courts unless "clearly wrong." See Arkansas State Medical Board v.Bolding, 324 Ark. 238, 920 S.W.2d 825 (1996); Douglass v. DynamicEnterprises, Inc., 315 Ark. 575, 869 S.W.2d 14 (1994); Junction CitySch. Dist. v. Alphin, 313 Ark. 456, 855 S.W.2d 316 (1993); Brimer v.Arkansas Contractors Licensing Bd., 312 Ark. 401, 405, 849 S.W.2d 948 (1993); Pledger v. Boyd, 304 Ark. 91, 799 S.W.2d 807 (1990); ArkansasDepartment of Human Services v. Green Acres Nursing Homes, Inc.,296 Ark. 475, 757 S.W.2d 563 (1988); Arkansas Contractors Licensing Bd. v.Butler Const. Co., Inc. of Barling, 295 Ark. 223, 748 S.W.2d 129 (1988);Ragland v. Arkansas Writers' Project, Inc., 287 Ark. 155, 697 S.W.2d 94 (1985), reh denied, 287 Ark. 155, 698 S.W.2d 802; Morris v. Torch Club,278 Ark. 285, 645 S.W.2d 938 (1983).
Although the term "school bus" is not defined in the pertinent state specifications, it is variously defined in other portions of the Arkansas Code. One definition, in the "Uniform Act Regulating Traffic on Highways of Arkansas" (A.C.A. § 27-49-219(e)), restricts the definition to vehicles "owned by a public or governmental agency and operated for the transportation of children to or from school or privately owned and operated for compensation for the transportation of children to or fromschool." (Emphasis added.) See also Op. Att'y Gen. 95-290. As mentioned previously, however, one statute empowering the State Board of Education to enact school bus specifications refers broadly to buses used "for the transportation of school children." See A.C.A. § 6-19-111(a) (Repl. 1993). In addition, a more recent statute, imposing additional specifications for school buses, defines that term as "every motor vehicle owned by a public school district or a private school or a governmental agency and operated for the transportation of children to or from schoolor school-sponsored activities." A.C.A. § 6-19-117(a) (Supp. 1997) (Emphasis added.)
I cannot state, in light of these definitions, that the interpretation of the Department of Education applying its specifications to buses used in connection with extra-curricular activities is "clearly wrong." It is therefore my opinion that the answer to your first question is "no."
Question 2 — Do the state specifications for school buses apply to busesor other vehicles used to transport students to or from extra-curricularactivities of a school district?
It is my opinion, consistent with the discussion above, that the answer to this question is "yes." The state specifications apply to buses or other "vehicles" that "with standard seating arrangement prior to modification would accommodate more than 10 persons." Specifications Governing School Bus Design, Section 3.01. Although the specifications are not entirely clear in their application to vehicles used solely to transport students to and from extra-curricular activities, it is my opinion that a court would uphold the Department's application of these specifications to such vehicles.
Senior Assistant Attorney General Elana C. Wills prepared the foregoing opinion, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
MP:ECW/cyh
1 I assume your question has reference to a "bus" with a seating capacity of more than ten passengers.
2 The specifications apply to school buses, "that, with standard seating arrangement, prior to modification would accommodate more than 10 persons."