School transport: competences, obligations, free of charge
Law 118 (Article 28) also provides, among the measures to guarantee school attendance, ‘free transport from one’s home to the seat of the school or course and vice versa (?)’.
Unfortunately, that provision limits the indication to compulsory schooling, merely conceding that ‘the attendance of invalids and civil amputees at secondary and university schools will also be facilitated’. This means that school transport, if one stops at that provision, must only be guaranteed in compulsory schooling.
On this aspect, the Constitutional Court ruling of 1987, number 215 to be precise, intervenes.
With extreme clarity, the Court sanctions the constitutional illegitimacy of the passage in Law 118/1971 that states: ‘the attendance of invalids and civilian amputees at secondary and university schools shall also be facilitated’. School attendance cannot simply be ‘facilitated’: it must be ‘ensured’.
This clarification is very important because from then on, even for non-compulsory schools, the necessary support, and therefore also transport, for disabled persons must be guaranteed. The indication is reiterated, without a shadow of a doubt, by the well-known framework law on disability (Law 104/1992, in particular Articles 12 and 13).
To summarise: the right to school transport for compulsory schooling is provided for in Article 28 of Law 118/1971. School transport for secondary schools is, in essence, ensured by Constitutional Court sentence 215/1987 and Articles 12 and 13 of Law 104/1992.
Skills
Legislative Decree No 112 of 31 March 1998 is highly significant for having redesigned the competences of the State, the Regions, the Provinces and the Municipalities with respect to the most important subjects: productive activities, infrastructures, territory, environment and personal and community services. The latter also include school education.
Article 139 clearly specifies which tasks and functions are assigned to the provinces and which to the municipalities. The provinces are to be responsible for upper secondary education, while the municipalities are to be responsible for lower secondary education.
Among the functions that provinces and municipalities must perform, there are also ‘the organisational support services of the education service for pupils with disabilities or in disadvantaged situations’. So also school transport.
It is therefore up to the Provinces to provide school transport for high schools (Article 139, Legislative Decree 112/1998). It is up to the municipalities to provide transport for all lower levels of education, including pre-schools (the legislative reference is the same).
Moreover, with Decision 2631, filed on 20 May 2008, the Council of State definitively sanctioned the obligation (and free of charge) of transport with assistance also to high schools at the expense of the Provinces.
The Council of State was called upon to judge the appeal by the Province of Salerno and the Campania Region, which had already been ‘condemned’ by their Regional Administrative Court for not having guaranteed free school transport, as already clearly provided for compulsory schooling, to a disabled student.
The Council of State confirmed the Campania Regional Administrative Court’s ruling. The Council referred to sentence 215/1987 of the Constitutional Court in 1987, which had sanctioned the constitutional illegitimacy of the passage of Law 118/1971 stating: ‘the attendance of invalids and civilian amputees at secondary and university schools will be facilitated’.
It has to be said that after the suppression of the Provinces which took place by Law No. 56 of 7 April 2014, the relevant competence of school transport is still sent to be defined
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