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Decision No. 14,749

Appeal of JOSEPH AND KAREN HURD from action of the Board of Education of the Sandy Creek Central School District regarding transportation.

 

Decision No. 14,749

(June 26, 2002)

 

Hogan & Sarzynski, LLP, attorneys for respondent, Edward J. Sarzynski, Esq., of counsel

 

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Sandy Creek Central School District ("respondent") with respect to the provision of transportation to their children. The appeal must be sustained in part.

Petitioners and their three children are residents of respondent's district, and the children respectively attend 3rd, 5th and 6th grades at the Vorea Christian School ("Vorea"), which is located approximately 8.8 miles from petitioners' home and 8.2 miles from the Sandy Creek Central School ("Sandy Creek"). The school day at Vorea is from 9:00 a.m. to 3:05 p.m.

During the 2001-2002 school year, the district has transported petitioners" children via the district's normal bus runs from their home to a pick-up point at Sandy Creek, where the children then board another bus that takes them to Vorea, arriving at approximately 8:45 a.m. A district bus picks up the children at Vorea either at approximately 3:40 to 3:50 p.m. (petitioners' estimate) or 3:30 to 3:40 p.m. (respondent's estimate) and arrives at Sandy Creek approximately 4:00 to 4:10 p.m. (petitioners' estimate) or 3:50 to 4:00 p.m. (respondent's estimate). Petitioners are responsible for providing transportation of their children from Sandy Creek back to their home. However, it appears from the record that respondent also provides transportation to petitioners" children on Tuesdays and Thursdays at 4 p.m. on a bus used to transport students to the district's after-school program. Although it is unclear from the record, it appears that on those days transportation is provided from Vorea to or near petitioners' home, and not to the Sandy Creek pick-up point.

Respondent had originally proposed transporting students directly to and from Vorea, upon the condition that Vorea shorten its school day to accommodate the district's bus schedule.

In a letter, dated September 7, 2001, to the chairman of the Vorea Christian School Board, respondent's superintendent of schools noted the chairman's previous rejection of the district's proposal that Vorea alter its dismissal time to coincide with the district's dismissal time of 2:40 p.m. in order to meet the district's bus schedule. The superintendent indicated that "as a temporary solution and as a courtesy during the first semester the school district has offered a shuttle of a continuing route to bring the students from Vorea to the Sandy Creek school for parental pickup at approximately 4:00 PM." The superintendent requested that Vorea reconsider altering its schedule.

By letter dated September 12, 2001, the Vorea school board chairman informed the superintendent that Vorea could not change its dismissal time from 3:05 to 2:40 p.m. because this would shorten its school day by 25 minutes and prevent them from providing adequate instruction. The chairman disputed the superintendent's characterization of the transportation arrangement as "temporary" or as a "courtesy" and stated that Education Law "3635 obligates the district to provide afternoon transportation to Vorea students that is equivalent to that provided to district students, i.e. door-to-door service for transportation to and from school. The chairman acknowledged that the specific times, routes and related details of the current shuttle plan are temporary, pending resolution of the transportation concerns. However, the chairman further stated that the use of pick-up points to transport Vorea students is impermissible under Education Law "3635 because the students reside within the applicable transportation limits. The chairman requested that the district reexamine its transportation plan and consider making arrangements to pick up Vorea students within a reasonable period after their dismissal at 3:05 p.m. and transport them directly home.

In a separate letter dated September 9, 2001, petitioners requested that respondent direct the district to pick up their children at Vorea at an earlier time to accommodate their dismissal at 3:05 p.m. and to provide transportation of the children from Vorea directly to their home.

By letter dated September 24, 2001, the superintendent informed the Vorea school board chairman of respondent's denial of the chairman's transportation request. Petitioner Karen Hurd was copied on this letter. There is nothing in the record to indicate that respondent separately responded to petitioners' September 9, 2001 letter.

Petitioners contend that the current arrangement for the transportation of their children violates Education Law "3635(1)(a). Petitioners request that respondent provide "door-to-door" transportation to their children and "those in like circumstances" both to and from school; that transportation be arranged so that drop-off and pick-up times conform to the hours of the Vorea school day to at least the same extent as such conformance exists at Sandy Creek; and that I order respondent to reimburse petitioners for their mileage in transporting their children from the Sandy Creek school to their home.

Respondent generally denies petitioners' allegations and contends that accommodating petitioners' request would substantially and negatively impact the district's students, staff and other parents.

Education Law "3635(1)(a) provides, in pertinent part:

"Sufficient transportation facilities . . . shall be provided by the school district for all the children residing within the school district to and from the school they legally attend, who are in need of such transportation because of the remoteness of the school to the child or for the promotion of the best interest of such children. Such 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 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 . . ."

Pursuant to the statute, respondent is obligated to provide transportation to petitioners' children, since they are residents of respondent's district and live 8.8 miles from the Vorea Christian School, the school they legally attend and are respectively enrolled, in grades 3, 5 and 6.

Respondent has arranged to provide such transportation through use of a centralized pick-up point at the Sandy Creek Central School. Education Law "3635(1)(b)(i) provides, in pertinent part:

"School districts providing transportation to a nonpublic school for pupils living within a specified distance from such school shall designate one or more public schools as centralized pick-up points and shall provide transportation between such points and such nonpublic schools for students residing in the district who live too far from such nonpublic schools to qualify for transportation between home and school. The district shall not be responsible for the provision of transportation for pupils between their home and such pick-up points. The district may provide school bus transportation to a pupil if the residence of the pupil is located on an established route for the transportation of pupils to the centralized pick-up point provided such transportation does not result in additional costs to the district [emphasis added] . . . "

Pursuant to the statute, the use of a centralized pick-up point is authorized only for ". . . students residing in the district who live too far from such nonpublic schools to qualify for transportation between home and school." However, as indicated above, petitioners' children qualify for transportation under "3635(1)(a) since they reside more than two miles and less than fifteen miles from the Vorea school. Accordingly, pursuant to the statute, respondent is obligated to provide transportation for petitioners' children directly from their home to the Vorea school and directly from the Vorea school back to petitioners' home, without the use of a centralized pick-up point (Appeal of Del Prete, 40 Ed Dept Rep 148, Decision No. 14,444). However, although petitioners request "door-to-door" transportation, Education Law "3635 does not require door-to-door transportation and a board of education has reasonable discretion in establishing a pick-up point near petitioners' home (Appeal of Behan, 34 Ed Dept Rep 368, Decision No. 13,345).

Respondent, citing Appeal of Cornerstone Christian School, 30 Ed Dept Rep 452, Decision No. 12,532, contends that the Education Law does not require boards of education to provide transportation to children attending nonpublic school in all circumstances and that public and nonpublic school authorities have an obligation to cooperate in a reasonable manner in the scheduling of classes and that the failure to cooperate and the adoption of unreasonable or erratic schedules have been held to relieve the public school authorities of the responsibility for arranging transportation to meet those schedules. Respondent argues that the 3:05 p.m. closing time at the Vorea Christian School is unreasonable. Respondent also cites the decision in Matter of Berger, 22 Ed Dept Rep 443, Decision No. 11,028, that school districts must provide transportation in an economical and reasonable manner. Respondent alleges that accommodating petitioners' transportation request would substantially and negatively impact the district's students, staff and other parents.

However, the Cornerstone and Berger decisions each presented different factual circumstances and issues than those presented here and in the Del Prete, supra decision. Neither the Cornerstone nor Berger decision addressed or involved the specific issue as to whether resident nonpublic school students who reside within the two-to- fifteen mile distance limitation established in Education Law "3635 are entitled to be provided transportation by the district directly between their homes and the nonpublic school, without the use of centralized pick-up points. More importantly, and determinative in this instance, the requirement that respondent provide direct transportation, without employing a centralized pick-up point, to resident nonpublic school students who reside within the two-to- fifteen mile distance limitation, is a statutory requirement pursuant to Education Law "3635(1)(a). While nonpublic school authorities have an obligation to cooperate in a reasonable manner in the scheduling of classes and transportation, their alleged failure to cooperate cannot excuse respondent from its obligation to comply with Education Law "3635(1)(a). Similarly, while school districts have a responsibility to provide transportation services in an economical and reasonable manner, they are not thereby relieved of their responsibility under "3635(1)(a) to provide direct transportation, without the use of centralized pick-up points, to nonpublic elementary students who reside within the two-to-fifteen mile limit. Considerations involving the cooperation of nonpublic school authorities and the overall economics and efficiency of the transportation services are subordinate to, and must be evaluated only within the context of, respondent's statutory obligation to provide transportation to petitioners' children. As an example, in Appeal of Del Prete, supra, I determined that the district was obligated to provide transportation to a nonpublic elementary student, without the use of a centralized pick-up point, if the student lived between two and fifteen miles from the nonpublic school. However, I declined to order that the student be assigned to a particular bus route, noting that the district has broad discretion to determine how the required transportation was to be provided, and may balance considerations of safety, convenience, efficiency and cost.

Since I find that respondent must alter its present arrangement for the transportation of petitioners' children to provide for direct transportation without the use of centralized pick-up points, and the pick-up/drop-off times for such transportation are yet to be determined, petitioners' request that their children's transportation be arranged so as to conform to the Vorea school day has been rendered moot and it is unnecessary for me to determine such request (Appeal of Seibt, 40 Ed Dept Rep, 184, Decision No. 14,455). However, as discussed above, I note respondent's broad discretion to determine how the required transportation is to be provided, balancing considerations of safety, convenience, efficiency and cost, and the responsibility of both parties to cooperate in a reasonable manner in the scheduling of their classes.

Petitioners request that I order respondent to reimburse petitioners for their mileage in transporting their children from the Sandy Creek school to their home. In view of my determination that petitioners' children are entitled to transportation by respondent pursuant to Education Law "3635(1)(a), respondent must reimburse petitioners for such reasonable and direct costs incurred by them in providing transportation (Appeal of R.G., 41 Ed Dept Rep ___, Decision No. 14,736; Cornerstone, supra at 452; Matter of Rocca, 23 Ed Dept Rep 244, Decision No. 11,202).

Finally, although petitioners request transportation for their children and "those in like circumstances," petitioners have failed to establish that they qualify to maintain a class appeal pursuant to 8 NYCRR "275.2. The regulation states, in pertinent part: "[Class appeals] may be maintained by one or more individuals on their own behalf and as representatives of a class of named or unnamed individuals only where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class." The record indicates that respondent provides transportation to 11 students attending Vorea Christian School. I do not find such number to be so numerous so as to justify maintenance of a class appeal. Furthermore, petitioners have not established, or even alleged, sufficient facts for me to determine whether this appeal presents questions of fact and law common to all members of the proposed class.

Although this appeal is limited to a determination of the rights of petitioners' children to receive transportation, I remind respondent of its obligation pursuant to Education Law "3635(1)(a) to provide transportation to nonpublic students who reside within the specified statutory limitations (2-15 miles for elementary students and 3-15 miles for secondary students) directly from their homes to the nonpublic school and directly from the nonpublic school back to their homes, without the use of a centralized pick-up point.

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that respondent provide transportation to Kathleen, Rachael and Carl Hurd, directly from their home to the Vorea Christian School and directly from such school back to their home, in accordance with this decision; and it is further

ORDERED that respondent reimburse petitioners for such reasonable and direct costs incurred by them in providing transportation for their children during the period respondent has failed to provide them with the transportation required pursuant to Education Law "3635(1)(a), in accordance with this decision.

END OF FILE