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Decision No. 14,808

Appeal of BARBARA PORZIO, on behalf of her son MICHAEL, from action of the Board of Education of the Pawling Central School District regarding transportation.

Decision No. 14,808

(October 9, 2002)

Girvin & Ferlazzo, P.C., attorneys for respondent, Scott Michael Goodspeed, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Pawling Central School District ("respondent") denying her son, Michael, transportation to a nonpublic school. The appeal must be dismissed.

Petitioner and Michael reside within respondent"s district. Petitioner initially made a timely request for Michael"s transportation to the Kent School, a nonpublic school, for the 2001-2002 school year. Although respondent determined that petitioner lived more than 15 miles from the nonpublic school, respondent approved Michael"s transportation from a central pickup point because an eligible student had also requested transportation to the Kent School. Petitioner withdrew her transportation request in August 2001, after her son decided to attend a different school. However, petitioner renewed her request on January 2, 2002, after her son transferred to the Kent School mid-year. By then, the district had discontinued the route to the Kent School because the student who had been eligible for transportation at the beginning of the school year had become a resident at the school. Respondent"s superintendent notified petitioner by letter dated January 17, 2002, that her son would be provided transportation from the district"s centralized pick-up point as soon as the district was able to secure a driver to resume the route. The letter also advised petitioner that for the 2002-2003 school year, the bus to the Kent School would only be provided if another student who lived within 15 miles of the Kent School requested transportation.

By letter dated February 11, 2002, petitioner challenged the determination that the Kent School was more than 15 miles from her home. Petitioner contended that the school is within 15 miles from her home if the distance is measured using the "first driveway" to the school, rather than the "back driveway" utilized by the district. By letter dated March 6, 2002, the superintendent denied petitioner"s request to re-measure the distance using the driveway suggested by petitioner.

On March 21, 2002, petitioner submitted a request for Michael"s transportation to the Kent School for the 2002-2003 school year. Petitioner also informed the superintendent that she wished to appeal the superintendent"s March 6, 2002 determination. By letter dated April 24, 2002, the superintendent informed petitioner that respondent had denied her request to change the method used to calculate the distance between petitioner"s home and the Kent School. In addition, on May 13, 2002, respondent determined that it would not provide transportation to the Kent School for the 2002-2003 school year because no student living within 15 miles of the school had requested transportation. Petitioner was apparently notified of respondent"s decision by telephone on May 14, 2002. Petitioner commenced this appeal on June 12, 2002.

Petitioner contends that respondent"s determination denying Michael transportation from the centralized pickup point for the 2002-2003 school year is arbitrary and capricious because the district has transported students to the Kent School for the last nine years. She also contends that the district has discretion to provide the requested transportation. She argues that because respondent transported her son from the pick-up point last year even though no other students were being transported to the Kent School, it should do so this school year. Petitioner also challenges respondent"s method for measuring the distance between her home and the Kent School. She argues that respondent does not have a written policy specifying where on school property measurements should be taken and claims that using the driveway she suggests is reasonable even though she concedes it leads to "the river where the school holds sporting events".

Respondent contends that the appeal is untimely to the extent petitioner challenges respondent"s method for measuring the distance between petitioner"s home and the nonpublic school. Respondent also alleges that petitioner has failed to demonstrate her entitlement to relief.

Before turning to the merits of the appeal, I will address the procedural issues. Respondent objects to portions of petitioner"s reply, contending that petitioner improperly includes allegations supporting her claim and an explanation for her delay in challenging respondent"s measurement methodology. Respondent also objects to the fact that petitioner submitted separate replies to each affidavit submitted by respondent. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Langstedt, 41 Ed Dept Rep , Decision No. 14,696). Because respondent raised an issue of timeliness in its answer, petitioner is entitled to respond to those allegations in her reply. Further, although petitioner"s submission of separate "replies" to each affidavit is not expressly authorized, I will accept petitioner"s submissions in light of petitioner"s prose status and the lack of prejudice to respondent.

The appeal must be dismissed to the extent petitioner challenges respondent"s method for measuring the distance between petitioner"s home and the nonpublic school. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioner was notified by letter dated April 24, 2002 that respondent had denied her request to re-measure the distance between her home and the nonpublic school. Petitioner did not commence this appeal until June 12, 2002, well beyond the 30-day period. Petitioner acknowledges that this challenge is untimely, but contends that she did not appeal respondent"s decision initially because she "was prepared to accept transportation from a central pickup point" for the 2002-2003 school year. I do not find that petitioner has established good cause for the delay. Petitioner was explicitly notified by letter dated January 17, 2002 that respondent could not guarantee petitioner"s son transportation from the central pickup point for the 2002-2003 school year. Accordingly, petitioner"s assumption that her son would receive such transportation is unreasonable, and does not excuse her failure to timely challenge respondent"s measurement methodology.

The appeal must also be dismissed on the merits. Education Law "3635(1) establishes a dual system of entitlement to transportation services to nonpublic schools. Transportation between a pupil's home and the nonpublic school that 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 lengthened by local district policy after approval by district voters (Education Law "3635[1][a]). In this case, it appears that the voters have not elected to extend the maximum distance beyond 15 miles.

Additionally, transportation may be furnished for certain other pupils attending a 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 (Appeal of Lucente, 40 Ed Dept Rep 455, Decision No. 14,526; Appeal of Scali, 38 id. 727, Decision No. 14,127).

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.

Although respondent has the authority to transport Michael to the Kent School from the centralized pickup point because it has provided transportation to the school in at least one of the last three years, it is not obligated to do so (Education Law "3635[1][b][ii]). Rather, the matter is wholly within respondent"s discretion (Id.). Moreover, the record reflects that no eligible student requested transportation to the Kent School for the 2002-2003 school year. Thus, Michael is not entitled to transportation under "3635(1)(b)(i).

Nor do I find any merit to petitioner"s challenge to the district"s method for measuring the distance between petitioner"s home and the nonpublic school. A school district has broad discretion in selecting measurement points on school property for purposes of determining eligibility for transportation (Appeal of Gundrum v. Ambach, 55 NY2d 872, rev'g 83 AD2d 911; Appeal of Mogel, 41 Ed Dept Rep , Decision No. 14,636; Appeal of Canossa, et al., 37 id. 456, Decision No. 13,904). It may measure transportation distances from any part of the school, so long as it does so fairly and consistently (Appeal of Mogel, supra; Appeal of Canossa, et al., supra; Matter of Law, et al., 12 Ed Dept Rep 224, Decision No. 8620, aff'd Sup.Ct. Albany Co., n.o.r.). The Commissioner of Education has upheld measurements using a variety of reference points, such as: a corner of the school property (Appeal of Canossa, et al., supra); the side, rather than front, entrance of the school (Appeal of Mermelstein, et al, 30 Ed Dept Rep 119, Decision No. 12,406); the point at which the child first comes in contact with the grounds of the school he or she attends (Appeal of Pavony, et al., 27 Ed Dept Rep 295, Decision No. 11,951); a point at the entrance gate to the school grounds (Matter of Feldblum, 4 Ed Dept Rep 156, Decision No. 7499) and the mid-point of the school (Matter of Silbert, et al. and Fitzpatrick, 1 Ed Dept Rep 283, Decision No. 6607).

Respondent has submitted an affidavit from its transportation supervisor who explains that her practice is to measure the distance between a resident"s home and a nonpublic school using the shortest publicly maintained available route. In this case, she measured the distance between petitioner"s home and the Kent School using three different routes, each of which exceeded 15 miles. She further explains that in each instance, she used the driveway to the main entrance of the Kent School, which is where the bus has dropped off students in the past, as the terminal point of the route. Further, this is the same method she employed on two previous occasions to determine the eligibility of district students for transportation to the Kent School. She also explains that the driveway suggested by petitioner is a single-lane dirt road leading to the Housatonic River that is periodically closed due to inclement weather. Under these circumstances, I find that respondent properly exercised its discretion in determining Michael"s eligibility for transportation.

THE APPEAL IS DISMISSED.

END OF FILE