Decision No. 14,877
Appeal of CLAIRE ZWICKEL, on behalf of DANIELLE SZAJER, from action of the Board of Education of the Catskill Central School District regarding transportation.
(May 30, 2003)
Rusk, Wadlin, Heppner & Martuscello, LLP, attorneys for petitioner, Wendy S. Ricks, Esq., of counsel
Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel
MILLS, Commissioner.--Petitioner appeals the denial by the Board of Education of the Catskill Central School District ("respondent") of her request to change the transportation pick-up point for her daughter. The appeal must be sustained in part.
Petitioner resides on Route 23A in respondent's district. Petitioner's daughter Danielle is a sixth grade student attending one of respondent's elementary schools. Respondent's designated pick-up point for Danielle is almost 4/10ths of a mile from petitioner's home on Route 23A. In the summer of 2002, petitioner asked respondent to change Danielle's pick-up point to the end of petitioner's driveway. At a board meeting held on October 30, 2002, respondent denied petitioner's request. This appeal ensued. Petitioner's request for interim relief was denied on December 18, 2002.
Petitioner argues that respondent's designated pick-up point is dangerous because it requires her daughter to walk almost 4/10ths of a mile on a busy highway. Petitioner also asserts that respondent, in selecting Danielle's pick-up point, violated its own regulation governing the designation of district pick-up points for her grade level. Petitioner seeks an order designating the end of her driveway as Danielle's pick-up point and directing respondent to comply with its regulation.
Respondent concedes that it exceeded the distance limit established by its regulation in designating Danielle's pick-up point. Respondent argues that there is no location between petitioner's home and the designated pick-up point that would be safe. Respondent contends that its decision was not arbitrary and capricious and that petitioner must ensure that her daughter safely reaches the district's designated pick-up point.
The appeal must be sustained in part. A board of education may exercise its discretion in designating pick- up points, provided that the board uses care in exercising such discretion (Appeal of Del Vecchio, 39 Ed Dept Rep 258, Decision No. 14,230; Appeal of Di Napoli, 38 id. 269, Decision No. 14,030; Appeal of Warner, 37 id. 469, Decision No. 13,907). Although not required by law, respondent has adopted a regulation that clearly states, without exception, that "Students in grades 1-6 will not be required to walk distances in excess of .25 mile" to the district designated pick-up point. Respondent admits that, in Danielle"s case, it violated this regulation. Thus, I find respondent's designation of a pick-up point that requires Danielle to walk more than .25 mile, in violation of its own regulation, arbitrary and capricious (See Appeal of Fusco, 39 Ed Dept Rep 836, Decision No. 14,396; Appeal of Joannides, 32 id. 278, Decision No. 12,830; Appeal of Brenner, 28 id. 402, Decision No. 12,153).
Respondent"s argument that general safety concerns permitted it to override the distance limits in its policy is unavailing. Respondent may choose to revise its existing regulations with respect to the future designation of district pick-up points, but it is not free to retain the regulation and violate it whenever it deems necessary. Thus, petitioner's claim must be sustained to the extent that respondent is ordered to comply with its regulation governing the designation of pick-up points.
However, I reject petitioner's request for an order designating the end of petitioner's driveway as the pick-up point for Danielle. Respondent has submitted some evidence, which I find petitioner has not satisfactorily refuted, that petitioner's driveway is not a safe pick-up point. Therefore, based on the record before me, I find that petitioner has failed to demonstrate that respondent acted unreasonably in determining that petitioner's driveway is unsuitable as a pick-up point.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that respondent comply with its regulation governing the designation of pick-up points.
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