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Decision No. 13,013

Appeal of DENISE PALYO from action of the Board of Education of the Salem Central School District relating to transportation.

Decision No. 13,013

(September 22, 1993)

Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for respondent, Martin D. Affredou,

Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's refusal to change the assigned bus and pick-up point used to transport her children to school. The appeal must be dismissed.

Petitioner and her husband reside with their two sons on County Route No. 30 in the Town of Salem. Petitioner's children are enrolled in the Salem Central School District ("the district"), which provides transportation to them on bus route No. 58. County Route 30 is a main highway which is heavily travelled. The speed limit on Route 30 is 55 m.p.h. except on a blind downhill curve above petitioner's home where it is 40 m.p.h. Bus 58 travels downhill in the morning and uphill in the afternoon. Because respondent concluded that the downgrade and blind curve raised safety concerns, it designated petitioner's lower driveway as the bus stop for both loading and discharging petitioner's children as well as those of her neighbor who lives on the other side of County Route 30. Petitioner and this neighbor have been engaged in a long-standing feud.

Respondent now alleges that, unbeknownst to the district, the driver of bus 58 began picking up petitioner's children at her upper driveway in September 1991 in response to a request from petitioner's husband. This arrangement continued until May 1992, when the district's transportation supervisor claims he first became aware of the situation and discontinued it to avoid having the bus make two stops in a hazardous area. Petitioner disputes the district's claim that it lacked knowledge of the upper driveway stop and alleges that her children have been picked up there since 1988. In any event, the transportation supervisor informed petitioner by telephone and letter dated May 29, 1992 that for safety reasons, the bus would use the lower driveway and no longer stop at the upper driveway.

In early September 1992, the district conducted its annual review of all bus transportation routes and again determined that the safest location for the bus stop was petitioner's lower driveway. At that time, the district also assigned a new driver to bus 58 to reduce incidents of student misbehavior. In addition, students involved in incidents on bus 58 during the 1990-91 and 1991-92 school years were provided different transportation for 1992-93.

At the meeting of respondent's board of education on October 21, 1992, petitioner requested a change in the pick-up point to the upper driveway because of problems with her neighbor. She also requested that her children be changed to bus route No. 64 due to problems on bus No. 58 in preceding years. Petitioner presented her request at an executive session of the board. For safety reasons, the board determined not to change the pick-up point or the bus assignment since bus 64 was already full in the morning.

By letter dated October 26, 1992, respondent's superintendent informed petitioner of the board's decision and offered her two alternatives. Either petitioner's children could ride bus 66 in the morning with a different pick-up point and return on bus 58 or they could wait for bus 58 in the morning 15-20 feet directly back on the pavement from the lower driveway. Petitioner did not respond to the letter. On November 27, 1992, petitioner commenced this appeal.

Petitioner contends that continuing to ride bus 58 would cause her children mental anguish. She presents an affidavit and a letter to the district dated May 10, 1991, from a psychologist who requested that the seat of one of petitioner's sons be switched to avoid the verbal abuse he received from older children seated near him. Respondent offers a May 17, 1991 letter from the school principal acknowledging the psychologist's concerns and indicates that the boy was moved to a seat directly behind the bus driver. To counter petitioner's January 6, 1993 letter from another psychologist claiming that the boy continued to have emotional difficulties caused by riding the school bus, respondent offers an affidavit from the current bus driver confirming that neither of petitioner's sons experienced problems on bus 58 after September 1992. Respondent also claims that petitioner never informed the district of the second psychologist's concerns regarding problems the student may be experiencing. Had petitioner referred her son to the multidisciplinary team designated by the district, a determination could have been made regarding his eligibility for special transportation under '504 of the Rehabilitation Act (29 USC '794). However, on the record before me, I cannot find that petitioner's son has a disability requiring special transportation under either the Individuals with Disabilities Education Act ("IDEA", 20 USC '1400 etseq.), Education Law Article 89, or Section 504 of the Rehabilitation Act of 1973.

In accordance with Education Law '3635, a board of education is required to provide transportation to certain students because of the distance between their home and the school they legally attend. However, a board of education has broad discretion in determining the manner in which such transportation will be provided (Appeal of Lavin, 32 Ed Dept Rep 249, 251). Based on the record before me, including the district's offer to reassign both petitioner's children from bus 58 to bus 66, there is no basis to find that respondent abused its discretion regarding their bus assignment.

Respondent also acted within its discretion in designating petitioner's lower driveway as the pick-up point for her children. Education Law '3635 does not "require a school district to furnish transportation to a child directly to or from his or her home." Instead the board of education has broad discretion to establish pick-up points, and the board may balance considerations of safety, convenience, efficiency, and cost in doing so (Appeal of Eats, 29 Ed Dept Rep 481; Matter of Horschel, 24 id. 94; Matter of Scheinberg, 21 id. 32). According to the record, respondent considered all the evidence before concluding that petitioner's upper driveway would create a safety hazard.

Both respondent's transportation supervisor and the transportation safety coordinator of the Board of Cooperative Educational Services (BOCES) for Washington-Warren-Hamilton-Essex Counties conducted an on-site safety inspection and concluded that two stops would be hazardous. They agreed that the lower driveway is safer as a bus stop because it is farther down the hill and farther away from the blind downhill curve. By acting on this information, and considering the convenience and safety of all students, respondent fulfilled its obligation "to use care in the selection of particular pick-up points" (Matter of Ryan, 24 Ed Dept Rep 125, 127).

THE APPEAL IS DISMISSED.

END OF FILE