Decision No. 14,456

(September 7, 2000)

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Carle Place Union Free School District ("respondent") denying their son Kory transportation to an after-school child care location two days each week. The appeal must be sustained.

Petitioners have three children who attend school within respondent’s district. Kory is the youngest. Mr. Seibt works full time; Mrs. Seibt works part-time. At various times in the past, respondent has transported one or more of the Seibt children from school to an after-school child care provider on the days their mother works and to the Seibt home on the days she is at home. For the past two years, respondent has provided such transportation to Kory.¹

On May 8, 2000, respondent adopted a policy on transportation to child care locations. The policy provides that "Transportation will be made from one morning [child care] location only and/or to one afternoon [child care] location only, and will not be provided on a selected day basis." The policy also states that parents must request child care transportation no later than June 1 for the following school year.

In April 2000, Mrs. Seibt had submitted a request to respondent asking that Kory be transported to an after-school child care location within the district on Thursdays and Fridays during the 2000-2001 school year. Following respondent’s adoption of this new policy, by letter dated May 17, 2000, the district’s Administrative Assistant for Support Services notified Mrs. Seibt that her request was denied. The letter stated that respondent’s district "does not provide transportation to or from different locations on different days of the week." The letter further advised Mrs. Seibt that, if she wished to have Kory transported to his child care location every day, she should submit a request for such transportation before June 1, 2000. This appeal ensued.²

Petitioners assert that during the past six years, respondent has transported their children to after-school child care locations within the district on specified days of each week and to their home on the remaining days according to a written schedule. They claim that respondent never provided any negative feedback on this process. Petitioners argue that respondent’s past practice established a precedent. Petitioners contend that they have eliminated the possibility for confusion in bus assignments or overcrowding on buses because they follow a set schedule and ask that Kory be transported to the same after-school child care location on the same days each week. Finally, petitioners argue that if the requested transportation is not supplied, Kory will not be able to continue a stable relationship with his child care provider and their worklives will be disrupted.

Respondent argues that its formal policy to provide child care transportation only to the same location each day is within its statutory discretion and should be given effect. Respondent also notes that it is statutorily required to treat all children in similar circumstances similarly where transportation to child care is concerned. It argues, in conclusory fashion, that making transportation to multiple destinations available to all children introduces scheduling and security problems that should be avoided. After careful consideration, I find respondent’s policy, as applied to deny Kory transportation to a single child care location on the same two days each week, inconsistent with the governing statute.

It is undisputed that respondent must provide Kory with transportation between his home and school. Education Law "3635(1)(a) requires school districts to provide transportation to and from school for all resident children who need it because of the distance to their school or because transportation would be in their best interest. Petitioners have asked respondent to transport Kory to his home three days a week, as respondent is obligated to do. Thus, the only question remaining is whether respondent can deny Kory transportation to a single child care location that he attends on the same two days every week.

Education Law 3635(1)(e) provides that, in lieu of transportation from home to school and back:

This provision contains no limitation on transportation to child care locations like the limitation respondent applied to Kory. When the Legislature wished to impose limits on transportation to child care locations, it specified them very clearly. For example, it provided that (with exceptions not relevant here) a board of education may limit the provision of such transportation to child care locations in the same attendance zone as the school a child attends. Further, it stated that it did not authorize the provision of transportation between a child’s home and a child care location.

Respondent’s determination is not only inconsistent with the statute, it is at odds with the plain language of its own policy, which states that it will provide transportation to only one morning and one afternoon [child care] location. That is precisely what petitioners have asked respondent to do. They have requested that Kory be transported to one location--other than his home--during the course of each week. Because the statute defines a child care location as a place other than a child’s home, transportation to Kory’s home cannot count as transportation to a "second" location. Respondent’s application of the policy to deny Kory transportation home three days each week and transportation to one child care location on two days each week thus violates the statute.

Moreover, respondent’s application of its policy is inconsistent with the Legislature’s intent in enacting "3635. The apparent legislative purpose for this provision was to encourage the use and development of child care programs and to help working parents gain access to child care (see, e.g., July 17, 1986 letter from co-sponsor Assemblywoman Newburger to Governor Cuomo, Bill Jacket, L. 1986, ch. 683). Nothing in the legislative history of "3635(1)(e) supports respondent’s application of its policy to Kory. Respondent’s interpretation would in effect require Kory’s parents to send him to child care everyday in order to avail themselves of the transportation provided, rather than allowing him to stay home with his mother three days per week. Certainly the Legislature did not intend to compel parents to send their children away from home for the entire week in order to obtain transportation to a child care location on the days the parents are not available to care for their children.

The Commissioner’s decisions relied upon by respondent are distinguishable from the circumstances of the instant appeal. Appeal of Van der Jagt, 33 Ed Dept Rep 517, Decision No. 13,134, was commenced by a divorced parent who sought transportation for his children from school to his home on some days and from school to his former wife’s home on other days. Transportation to child care locations was not at issue in that appeal and the statute that governs here did not apply. Similarly, the provisions of Education Law "3635 at issue here were not considered in Appeal of Clabeaux, 21 Ed Dept Rep 687, Decision No. 10,838, because they had not yet been enacted in 1982, when that appeal was decided. Accordingly, the decision in that appeal does not control my interpretation of the current law.

In sum, I find that respondent’s policy as applied to Kory, which makes transportation to a child care location available only if he attends it every weekday, inconsistent with the governing provisions of the Education Law. Such interpretation would not give full effect to the Legislature’s intent to assist working parents and promote the use of child care programs.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent provide transportation to the after-school child care location attended by Kory on a regular basis.

¹Respondent had refused to provide transportation to an after-school child care location on two days each week for the 1999-2000 school year. The Seibts appealed to the Commissioner and an interim order was issued directing respondent to provide the requested transportation. That appeal was rendered moot by the conclusion of the 1999-2000 school year and the commencement of this appeal challenging respondent’s refusal to provide such transportation for the 2000-2001 school year. (See, Appeal of Seibt, 40 Ed Dept Rep ___, Decision No. 14,455).

²I note that this appeal does not raise the issue of transportation to multiple child care locations or transportation to child care locations on a less than regular basis.

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