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Decision No. 12,609

Appeal of PATRICIA BODINE from action of the Board of Education of the Wyoming Central School District relating to transportation.

Decision No. 12,609

(December 11, 1991)

Streb, Porter, Meyer & Mahoney, Esqs., attorneys for petitioner, David B. Mahoney, Esq., of counsel

Harris, Beach & Wilcox, Esqs., attorneys for respondent, James A. Spitz, Jr., Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's denial of her request for transportation for her children to a nonpublic school. The appeal must be dismissed.

Pursuant to Education Law '3635, petitioner requested transportation for her children to attend a nonpublic high school during the 1991-92 school year. That request was denied since the nonpublic school in question is located more than fifteen miles from petitioner's home. Petitioner maintains that respondent's denial of her request was arbitrary and capricious. The gravamen of her claim is that because respondent transports some of its students to a school district located more than fifteen miles from their homes, Education Law '3635 requires that her children receive equal treatment and be transported more than fifteen miles to a nonpublic school. Petitioner is mistaken.

Education Law '3635(1) provides in pertinent part as follows:

. . . transportation shall be provided for all children attending grades kindergarten through eight who live more than two miles from the school which they legally attend and for all children attending grades nine through twelve who live more than three miles from the school which they legally attend and shall be provided for each such child up to a distance of fifteen miles, the distances in each case being measured by the nearest available route from home to school. . . . Transportation . . . for a greater distance than fifteen miles may be provided by the district, and, if provided, shall be offered equally to all children in like circumstances residing in the district. (emphasis added).

While the record shows that respondent is, in fact, providing transportation in excess of fifteen miles for some of its high school students, such transportation is being provided because respondent contracted with neighboring school districts to educate respondent's pupils in grades 9-12. Consequently, respondent is transporting students to the neighboring districts pursuant to Education Law '2045(4), rather than '3635. Education Law '2045(4) provides:

Each district which does not maintain a high school shall provide transportation when necessary for its pupils who have completed the work of the sixth grade and are receiving instruction in another district.

It has consistently been held, however, that transportation services provided pursuant to a statute other than Education Law '3635 are not restricted to the mileage limitations set forth in '3635, and students who are transported pursuant to such a statute are not "in like circumstances" to students who receive transportation under Education Law '3635 (seeMatter of Antonucci, 21 Ed Dept Rep 93; Application of a Child With a Handicapping Condition, 30 id. 424). For example, transportation of a student to a BOCES pursuant to Education Law '1950(4)(9) is not governed by the mileage limits of '3635, and students receiving such transportation are not in like circumstances to students receiving transportation pursuant to '3635 (Matter of Antonucci, supra; Matter of Joyce, 14 Ed Dept Rep 350; Matter of Frandsen, 11 id. 203). Transportation services provided to a child with a handicapping condition pursuant to Education Law '4402(4)(d) are also not subject to the mileage limits of '3635 and those students are not considered to be in like circumstances to students receiving regular education (Application of a Child With a Handicapping Condition, supra). Accordingly, I find that transportation services provided pursuant to Education Law '2045(4), because a school district has contracted with another district for the education of its high school students, is not governed by the mileage limits of Education Law '3635, and those students are not in like circumstances to students receiving transportation pursuant to '3635. Consequently, I find no merit to petitioner's contention that her children are being treated differently from other children similarly situated.

Petitioner also contends that respondent's denial of transportation is arbitrary and capricious because her children could be transported without additional cost or inconvenience on an existing bus route to the BOCES that is located near the nonpublic school her children attend. Eligibility for transportation under '3635 is determined on the basis of the distance between a child's home and the school he or she attends (Education Law '3635[1]; Matter of Studley v. Allen, 24 AD2d 678). Although there may be a bus available, boards of education lack the authority to transport students who are ineligible for transportation under the mileage limitations, notwithstanding the fact that there may be room on the bus for them (Appeal of Kluge, 31 Ed Dept Rep , Decision No. 12586, dated September 19, 1991; Appeal of Duek, 28 id. 7; Appeal of Pavony, et al., 27 id. 295).

I have reviewed petitioner's other contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE