Appeal of COLLEEN MOSHER, on behalf of her children GEORGE and FRANK, from action of the Board of Education of the Hadley-Luzerne Central School District regarding transportation.

Decision No. 15,525

(February 14, 2007)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hadley-Luzerne Central School District (“respondent”) that her children, George and Frank, are not eligible for after school transportation to their father’s place of employment.  The appeal must be dismissed.

Respondent’s transportation policy provides that “all children residing beyond one mile from the school of their attendance shall be provided transportation.”  At all relevant times, petitioner’s children attended respondent’s middle school.  In the morning, they were transported to the elementary/high school, four miles from their home, and transferred to the middle school via shuttle bus, two miles away.  Prior to October 4, 2004, petitioner’s children received bus transportation in the afternoon from the middle school to the elementary/high school, and from there to her husband’s place of business on Bridge Street (the “Bridge Street address”).

By letter dated September 29, 2004, the district’s transportation supervisor notified petitioner and her husband that effective October 4, 2004, their children would not be receiving transportation between the elementary/high school and the Bridge Street address because the distance between these locations was within one mile.

Petitioner expressed to respondent’s president and middle school principal her concerns about her children’s bus eligibility and their safety if they had to walk to the Bridge Street address.  At respondent’s meeting on October 4, 2004, petitioner expressed similar concerns to respondent and the superintendent.  Following that meeting, the superintendent informed petitioner that the children were ineligible for transportation from the elementary/high school to the Bridge Street address.

By letter dated February 7, 2005, petitioner wrote to respondent, the superintendent and the middle school principal requesting a notice of decision on “the bus issue” within ten days.  This appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner contends that the supervisor’s determination that her children are ineligible for transportation is erroneous.  She contends further that it is unsafe for her children to walk from the elementary/high school to the Bridge Street address because the walking route requires the children to cross a dangerous intersection which has no traffic light or crossing guards.  Petitioner seeks a determination that her children are eligible to receive the requested transportation or that the district provide crossing guards at the intersection.

Respondent contends that the petition fails to state a claim upon which relief may be granted and that it is untimely.  Respondent denies that the intersection is hazardous and asserts that the district lacks authority to employ crossing guards.

I must first address several procedural issues.  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 Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  Petitioner raises several new assertions in her reply concerning the alleged danger of the intersection that could have been included in the petition, and makes no claim that such information was previously unavailable.  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

     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 any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  A reconsideration request does not extend the time within which an appeal must be commenced (Appeal of a Preschool Child with a Disability, 43 Ed Dept Rep 343, Decision No. 15,012; Appeal of Williams, 42 id. 260, Decision No. 14,846).  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of E.M., 44 Ed Dept Rep 156, Decision No. 15,130; Appeal of R.A. and D.A., 43 id. 281, Decision No. 14,995).

     The appeal must be dismissed as untimely.  Petitioner did not commence the appeal until March 11, 2005, more than five months after the change in bus service became effective and the superintendent notified petitioner of his final determination on October 4, 2004.  Petitioner claims that on October 18, 2004 she requested a conference but that she had no knowledge of respondent’s November 11, 2004 response, until she received a letter from her attorney on February 8, 2005.  Petitioner further contends that by letter dated February 7, 2005 she requested that the issue be reconsidered.  I find this insufficient to constitute good cause for the substantial delay (seee.g.Appeals of T.M., Sr., 42 Ed Dept Rep 281, Decision No. 14,855).  Moreover, petitioner’s February 7, 2005 letter to respondent merely constituted a request for reconsideration, which does not extend the time in which an appeal may be taken from the initial determination (seee.g.Appeal of Korzyk, 33 Ed Dept Rep 460, Decision No. 13,113).  In any event, the appeal was commenced more than 30 days after February 7.  Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were timely, it would be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).

     Education Law §3635 does not require that districts provide students with door-to-door transportation (Pratt, et al. v. Robinson, et al., 39 NY2d 554; Studley, et al. v. Allen, et al., 24 AD2d 678; Ossant v. Millard, et al., 72 Misc 2d 384; Appeal of Kinkead, 45 Ed Dept Rep 511, Decision No. 15,398; Appeal of Hurwitz, 43 id. 463, Decision No. 15,051).  A board of education may exercise its discretion in designating pick-up and drop-off locations (Appeal of Kinkead, 45 Ed Dept Rep 511, Decision No. 15,398; Appeal of Di Napoli, 38 id. 269, Decision No. 14,030; Appeal of Marsh, 36 id. 134, Decision No. 13,680).  In establishing a pick-up or drop-off point, a board of education must consider and balance pupil safety and convenience, routing efficiency and costs (Appeal of Kelsey, 38 Ed Dept Rep 396, Decision No. 14,063; Appeal of O’Connell, 37 id. 22, Decision No. 13,794).  Moreover, boards of education have discretion to require students to walk to and from pick-up and drop-off points (Appeal of Rheaume-Wellenc, 37 Ed Dept Rep 83, Decision No. 13,811).

     Respondent’s policy provides for the transportation of all children who reside beyond one mile from the school of their attendance.  There is no contention that petitioner’s home is less than one mile from the middle school or dispute that petitioner’s children are eligible for transportation.  Petitioner has requested, however, that the children be transported to the Bridge Street address after school.  Respondent transports the children to the elementary/high school, which is located within one-half mile from that address.  Requiring the children to walk less than one mile from there falls squarely within the district’s transportation policy.

Petitioner contends that it is unsafe for her children to walk to the Bridge Street address from the elementary/high school because they have to cross a dangerous intersection that has no traffic light or crossing guards.  Respondent denies that the intersection is hazardous and asserts that petitioner’s children’s walking route is safe in that it contains sidewalks and crosswalks.  The courts and prior Commissioner’s decisions have consistently held that it is the responsibility of the parents and not the district to see that their children safely reach pick-up and drop-off points (Pratt, et al. v. Robinson, et al., 39 NY2d 554; Studley, et al. v. Allen, et al., 24 AD2d 678; Appeal of Raymond, 39 Ed Dept Rep 774, Decision No. 14,376).

The Commissioner of Education will uphold a district’s transportation determination, unless it is unreasonable or an abuse of discretion (Appeal of Kinkead, 45 Ed Dept Rep 511, Decision No. 15,398; Appeal of Smith, 44 id. 201, Decision No. 15,148; Appeal of Flemming, 43 id. 391, Decision No. 15,028).  On the record before me, I cannot conclude that respondent’s determination was arbitrary, capricious, or unreasonable.

Although the appeal is dismissed, I note that in its answering papers, respondent admitted providing transportation to certain students based on perceived hazards.  Respondent’s papers further stated that the district planned to examine whether it should establish a child safety zone for those students.  If it has not already done so, I urge respondent to review its transportation policy to ensure that it is consistent with the Education Law and case law thereunder.

THE APPEAL IS DISMISSED.

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