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Decision No. 14,330

Appeal of PAULA BERKINS, on behalf of SHARON BERKINS, from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding transportation.

Decision No. 14,330

(March 30, 2000)

Ehrlich, Frazer & Feldman, attorneys for respondent, Jerome H. Ehrlich and Christine M. LaPlace, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Hewlett-Woodmere Union Free School District ("respondent") to provide transportation for her daughter, Sharon, between school and a child care location. The appeal must be sustained in part.

In the Fall of 1998, petitioner’s daughter was a sixth grade student at respondent’s middle school. Pursuant to respondent’s transportation policy, students in grades four through six are eligible to receive transportation to and from school if they live at least " mile from the school they legally attend. Petitioner lives less than " mile from respondent’s middle school.

In early September 1998, petitioner requested that the district provide transportation for Sharon, from the home of a child care provider to school in the morning, and from school to the child care provider’s home after school. According to petitioner, the child care provider resides in the district, more than one mile from the middle school. On September 3, 1998 respondent’s director of school facilities/operations denied petitioner’s request. On October 15, 1998 petitioner appealed this determination to respondent’s superintendent, who denied the request. This appeal ensued. Petitioner’s request for interim relief was denied on November 25, 1998.

Petitioner contends that the family work schedules require that a child care provider take care of Sharon before and after school. Petitioner requests a waiver or modification of respondent’s transportation policies to facilitate Sharon’s transportation to and from school and the child care location.

Respondent contends that because petitioner’s daughter is not otherwise eligible for transportation services between home and school, she is not eligible for transportation to and from the child care provider’s home. Respondent also maintains that the petition is untimely.

As a threshold matter, an appeal to the Commissioner of Education pursuant to Education Law "310 must be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16). The district’s initial determination to deny petitioner’s transportation request was made on September 3, 1998. By letter dated October 15, 1998, petitioner appealed to the superintendent, who denied this request. Respondent argues that the date of denial for purposes of determining timeliness was September 3, 1998. However, the date from which the 30 day period runs is the date of the district’s final determination, which in this case appears to be the date of the superintendent’s decision. This appeal was commenced on November 9, 1998, within 30 days of petitioner’s October 15 appeal and the superintendent’s denial. Therefore, I decline to dismiss the appeal as untimely.

Education Law "3635(1)(a) requires districts to provide transportation to children attending grades kindergarten through eight who live more than two miles from the school which they legally attend. This provision also allows a school district to provide transportation for a lesser distance, as long as it is offered equally to all children in like circumstances residing in the district.

In lieu of the transportation provided between home and school, "a board of education may, at its discretion, provide transportation to any child attending grades kindergarten through eight between the school such child legally attends and before-and/or-after-school child care locations" (Education Law "3635[1][e]). Boards of education are afforded the discretion to determine whether to offer any transportation at all between schools located in the school district and child care programs located in the district. However, once a board of education determines to provide such transportation, it must be provided in accordance with the requirements of Education Law "3635(1)(e) (Appeal of Albert, 27 Ed Dept Rep 371, Decision No. 11,979).

In the instant appeal, respondent’s transportation policy, in effect since 1956, provides transportation for a child in grades four through six if the child lives " of a mile or further from the school. Following the commencement of this appeal, my Office of Counsel asked the district whether it provides transportation to child care locations for other children in the district. Respondent replied that it has a policy whereby the district will transport a student otherwise eligible for transportation pursuant to the district’s mileage limitations, to an established bus stop within the same attendance zone (other than the stop closest to the student’s home) as long as the child is transported to that designated stop every day.

Since respondent has elected to provide transportation for students to child care locations within the same attendance zone, its policy for determining a student’s eligibility for this service is improper. Education Law "3635(1)(e) provides that a student’s eligibility for transportation to before-and/or-after-school child care locations shall be "measured by the nearest available route from before-and/or-after school child care locations to the school they legally attend." Consequently, once a school district determines that it will transport children to before-and/or-after-school child care locations, a child may be eligible for transportation to or from a child care location even though the child would not otherwise be eligible for transportation to or from home.

Having adopted a policy to transport children in grades four through six, who live at least " mile from school, and having further acquiesced in the transportation of children from school to after-school child care locations other than the regular bus stop closest to the child’s home, respondent is obliged to transport those children to child care locations within the child’s attendance zone which are located more than " mile from the child’s school. These same principles would apply to children in other grades as well.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent revise its policy with respect to transportation between school and child care locations in accordance with the terms of this decision;

IT IS FURTHER ORDERED that following the adoption of such policy, respondent shall ensure that petitioner’s child is provided with transportation in accordance with such revised policy;

IT IS FURTHER ORDERED that respondent transmit to my Office of Counsel a copy of the revised policy within 60 days of the date of this decision.

END OF FILE