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Decision No. 12,841

Appeal of ROSANNE NEUBAUER from action of the Board of Education of the Ossining Union Free School District relating to transportation.

Decision No. 12,841

(November 25, 1992)

Bacharach, Green & Bass, P.C., attorneys for respondent, Arnold B. Green, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's denial of her request for transportation for her son Stephen to a pre-kindergarten program at a nonpublic school. The appeal is dismissed.

Petitioner requested transportation for Stephen to attend a pre-kindergarten program at a nonpublic school for the 1992-93 school year. That request was denied. Petitioner maintains that respondent's denial of her request was arbitrary and capricious. The gravamen of her claim is that because respondent transports some students to a pre-kindergarten program operated by the district, Education Law '3635 requires that her son receive equal treatment and be transported to the pre-kindergarten program operated by the nonpublic school. Petitioner is mistaken.

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

... 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 supplied).

It is apparent that while Education Law '3635(1) requires respondent to provide transportation for children in grades kindergarten and above, it does not require or even authorize respondent to provide transportation for children attending pre-kindergarten.

While the record shows that respondent is, in fact, providing transportation to children attending a pre-kindergarten program operated by the district, such program and attendant transportation is being provided pursuant to a special program which is largely funded by a grant from the State of New York and is governed by Regulations of the Commissioner of Education (8 NYCRR Part 151). The purpose of this program is to operate a pre-kindergarten program for children with educational needs associated with poverty (8 NYCRR 151.1). A grant to operate such a program will only be awarded if at least 80% of the children served are economically disadvantaged.

It has consistently been held that transportation services provided pursuant to a statute or regulation other than Education Law '3635 are not restricted to the 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 (see Matter 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)(q) 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). Transportation 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 also not governed by the limits of Education Law '3635, and those students are not in like circumstances to students receiving transportation pursuant to '3635. Accordingly, I find that students who attend private pre-kindergarten programs are not in like circumstances to children who attend special pre-kindergarten programs operated pursuant to Part 151 of the Regulations of the Commissioner of Education. Consequently, I find no merit to petitioner's contention that her son Stephen is being treated differently from other children similarly situated.

Petitioner also contends that respondent's denial of transportation is arbitrary and capricious because her son could be transported without additional cost or inconvenience on an existing bus route to the nonpublic school in question. 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, notwithstanding the fact that there may be room on the bus for them (Appeal of Kluge, 31 Ed Dept Rep 107; Appeal of Duek, 28 id. 7; Appeal of Pavony, et al., 27 id. 295).

Petitioner also contends that because she is a working mother it is very difficult for her to drive her son to the pre-kindergarten program. She maintains that respondent's failure to transport her son will create an undue hardship on her. However, financial or emotional hardship is not a basis for granting transportation (Appeal of Kluge, supra; Matter of Nevin, 25 Ed Dept Rep 86; Nevin v. Ambach, et al., Supreme Court, Albany County, February 28, 1986, BRADLEY, J.; Matter of Eberhardt, 25 id. 263).

THE APPEAL IS DISMISSED.

END OF FILE