Decision No. 13,362

(February 16, 1995)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs.,

attorneys for respondent, Lawrence W. Reich, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's refusal to transport his son, Paul, to a nonpublic school. The appeal must be dismissed.

In March 1994, petitioner requested that respondent provide transportation for Paul to a nonpublic school for the 1994-95 school year. Respondent denied that request because the distance between petitioner's home and the nonpublic school is more than 15 miles. On August 16, 1994, petitioner asked respondent for a transportation allowance to cover the cost of a monthly train ticket between his home and Mineola, where Paul attends a nonpublic high school. On August 30, 1994, respondent denied that request. This appeal ensued.

Although his papers are not entirely clear, petitioner maintains that Paul is entitled to the requested transportation services, although he concedes that he and Paul reside more than 15 miles from the nonpublic school Paul attends. Petitioner alleges that respondent currently transports other district students who reside more than 15 miles from the nonpublic school they attend. Petitioner's contention ignores Education Law '3635.

Education Law '3635(1) provides a dual system of entitlement to transportation to nonpublic schools. Transportation between a student's home and the nonpublic school which the pupil attends must be provided if the distance between such home and school is within the statutorily prescribed limits for such transportation. Although the statute requires a board of education to provide transportation for elementary school pupils between home and school for distances of between 2 and 15 miles and for secondary school pupils between home and school for distances of between 3 and 15 miles, the minimum distance may be shortened and/or the maximum distance may be extended by local district policy after approval by the voters of the district (Education Law '3635[1][a]).

Additionally, transportation may be furnished for certain other pupils attending nonpublic school in accordance with Education Law '3635(1)(b)(i). A school district providing transportation to a nonpublic school for pupils living within the specified distances from such school must designate one or more public schools as centralized pickup points, and must provide transportation between such pickup points and such nonpublic school for pupils residing too far from the nonpublic school to qualify for regular transportation between home and school. The statute does not require transportation from centralized pickup points to any nonpublic school to which regular home to school transportation is not already being provided (Matter of Cantone, 22 Ed Dept Rep 200; Matter of Safar, 22 id. 93; Matter of Nowak, 22 id. 91).

Education Law '3635(1)(b)(ii) further states that a board of education "may, at its discretion," provide transportation from a centralized pickup point for pupils residing within the district to a nonpublic school located more than 15 miles from the home of any such pupil, provided that transportation has been provided to the nonpublic school in at least one of the immediately preceding three school years. When a school district exercises its discretion to provide transportation pursuant to Education Law '3635(1)(b)(ii), the distance from the pickup point to the nonpublic school must not be more than 15 miles.

The record indicates that respondent provides transportation to students who live more than 15 miles from the nonpublic school they attend only in cases where at least one student resides within 15 miles from the nonpublic school, as mandated by Education Law '3635(1)(b)(i). Such transportation is provided from centralized pickup points. The record further indicates that Paul is the only student seeking transportation to the school he attends and respondent has not provided transportation to that school in any of the last three years. Accordingly, respondent is not required nor is it authorized to provide the requested transportation services under Education Law '3635(b)(ii).

I have considered petitioner's remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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