Reasonable route to school and entitlement to reimbursement of transport costs

1. initial situation

The free provision of primary education under Article 19 of the Federal Constitution may give rise to a claim for the payment of transport costs if the journey to school cannot reasonably be expected of a pupil because it is excessively long or dangerous.

A rich practice has developed in the cantons in the area of assessing the reasonableness of the way to school. A recent decision of the Administrative Court of the Canton of Aargau shows some guidelines of practice from the Canton of Aargau, especially with regard to a sufficiently long lunch break. These are presented below.

2. judgment WKL.2021.18 of 26 August 2022

In a ruling dated August 26, 2022 (WKL.2021.18), the Administrative Court of the Canton of Aargau had to deal with the claim of a pupil for reimbursement of transport costs. The pupil, a fourth grade primary school student, claimed that her way to school had to be qualified as unreasonable due to its distance and with regard to the time spent. Subsequently, the pupil asserted claims for reimbursement of the costs for the bus subscription or reimbursement of the costs for the transport by private vehicle by the parents.

In dispute was a school route of about 2.5 performance kilometers. This route would have had to be covered on foot four times a day on those days on which school lessons also take place in the afternoon (three days a week), because the pupil spends her lunch break at home in each case.

The administrative court comes to the conclusion that the concrete way to school is to be qualified as reasonable for a pupil of the fourth primary school class due to its length and the slope. However, it was questionable and had to be examined whether the pupil would be able to enjoy a sufficiently long lunch break if she walked the route at noon after classes and in the afternoon before classes started. The administrative court first examines the public bus connections for this purpose. It comes to the conclusion that due to the available bus connections the problem of the too short lunch break cannot be solved. For this reason, the administrative court allows the pupil to be driven to school by her mother after the lunch break, with compensation to be paid by the municipality as the responsible body of the elementary school. However, the student must continue to walk home from school before the lunch break.

3. principles of reasonableness of the way to school

When examining the reasonableness of the journey to school, case law takes into account the age of the school-age child concerned. For kindergarten children, the requirements for reasonableness are different from those for a school-age child in middle school. While kindergarten children often focus on dangerous passages such as roads with heavy traffic that have to be crossed, older school-age children are usually concerned with the length of the route to school and, in connection with this, the question of whether it is possible to return home after midday.

In a general manner, the route to school is to be examined with regard to its length, the difference in altitude to be overcome, the nature of the route and the associated dangers as well as the age and constitution of the child concerned (Zurich Administrative Court, judgment VB.2021.00698, E. 2.2).

In its most recent case law, the Administrative Court of the Canton of Aargau increasingly focuses on the concrete time required instead of the number of kilometers. When calculating the time required, a walking speed of 4 to 4.5 km/h is assumed for school children from middle school onwards (judgment WKL.2021.18, E. 4). The case law of the administrative court further assumes that school children should effectively have 40 minutes at home over the midday (judgment WKL.2021.18, E. 5.3 m.w.H.). In view of the fact that classes at the primary school level usually end shortly before 12:00 p.m. and start again at 1:30 p.m., school journeys of around 30 minutes each way are thus not reasonable due to the temporal dimension of the lunch break (but not due to its length).

In my opinion, one aspect remains unclarified in this case law, which the Administrative Court did not address in the aforementioned ruling and which is also not discussed in comparable rulings as far as can be seen. Especially in rural areas, but not only there, it is not uncommon for primary school pupils to travel to school by bicycle, at least from middle school onwards. This shortens the journey times considerably. In individual cases, it would therefore at least have to be examined whether the route to school can be covered by bicycle, unless other reasons, such as the dangerous nature of the route, militate against this. The use of a bicycle could largely eliminate the problem of the lunch break being too short.

4. claims in case of unreasonableness of the way to school

If the journey to school is unreasonable for a person obliged to attend, the right to sufficient and free primary education under Article 19 of the Federal Constitution gives rise to a claim against the school authority to ensure safe, reliable and timely transport to school. The school authority can meet its obligation to provide transport, for example, by reimbursing the schoolchildren for the cost of tickets for public transport or by setting up a school bus or school taxi service. However, the school authority is also entitled to ask the legal guardians to arrange for the school transport of their children, provided that the transport is possible and reasonable for them and the costs are reimbursed (BGE 140 I 153, E. 2.3.3).

Another possibility is that the school board provides attendance at a lunch table organized by the school with the offer of an appropriate midday meal and corresponding supervision of the pupils. Participation in such an offer is considered reasonable and releases the school board from having to provide school transport also at noon (BGer judgment 2C_433/2011, E. 4.3).

In the ruling of the Administrative Court of the Canton of Aargau, the pupil was awarded compensation for transport costs by allowing her to be driven to school by her mother after the lunch break on each of the three days on which classes are held in the afternoon, at the expense of the school provider. The rate of compensation per kilometer has been set at CHF 0.70. It should be noted that the compensation for school transport provided by parents is not indemnification in the sense of compensation for income. Rather, the compensation has the character of a compensation for travel expenses (BGer judgment 2C_433/2011, E. 5.1).

5. conclusion

In its more recent case law, the Administrative Court of the Canton of Aargau bases its assessment of the reasonableness of the journey to school less on the performance kilometers to be completed by the school-age child and more on the concrete time required for the journey to school. The student should have a lunch break at home of at least 40 minutes. If this is not possible due to the time required to get to school, a claim arises against the school board for reimbursement of the costs of using public transport or - if no public transport is available - for reimbursement of the transport costs for the parents' private journeys. Alternatively, the school board may also provide a lunch service.