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Decision No. 15,630

Appeal of  ANDREW L. SCHWAB, on behalf of his son CODY, from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding transportation.

Decision No. 15,630

(August 13, 2007)

Ingerman Smith, L.L.P., attorneys for respondents, Susan E. Fine, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”) to provide transportation for his son, Cody.  The appeal must be dismissed.

Prior to the commencement of the 2006-2007 school year, petitioner was informed that Cody, a sixth grade student, would not be eligible for district transportation because their home was less than one mile from the middle school.  Based on petitioner’s measurements, he requested that the district remeasure the distance.  By letter dated September 5, 2006, respondent’s transportation office notified petitioner that the distance between the middle school and his home on Hewlett Avenue was 0.97 miles.  By letter dated September 6, 2006, respondent’s business administrator informed petitioner that the distance was 0.94 miles.

Petitioner and respondent’s business administrator continued to discuss the matter over the next several weeks.  In October, petitioner informed the business administrator that he would be changing his address and the front entrance to the house to Harvard Avenue, which is on the other side of petitioner’s property.  Respondent remeasured the distance using the proposed Harvard Avenue entrance, and the distance was found to be 0.96 miles.  By letter dated November 22, 2006, the business administrator informed petitioner that he could address the matter to respondent or appeal to the Commissioner of Education.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 15, 2006.

Petitioner contends that the district’s determination that Cody is ineligible for transportation is erroneous.  Petitioner maintains that his house is over a mile from the middle school, that the route measured by the district was not a “legitimate” route, and that the district should remeasure the distance with petitioner or an independent third party present. Petitioner further contends that his neighbors on Harvard Avenue, who live directly across from petitioner’s home, receive transportation.  Respondent maintains that the petition is untimely and that petitioner’s assertions are without legal or factual merit.

     I must first address the procedural issue.  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).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of C.F., 44 Ed Dept Rep 109, Decision No. 15,113; Appeal of O.W., 43 id. 150, Decision No. 14,949) Following several remeasurements of the distance in question, respondent’s business administrator issued a letter dated November 22, 2006 that in essence informed petitioner that no further measurements were going to made and that he could address the matter to respondent or appeal to the Commissioner of Education.  Petitioner commenced this appeal on December 6, 2006.  Accordingly, the appeal is timely.

The appeal, however, must be dismissed on the merits.  A school district must provide transportation for all children attending grades kindergarten through eight who live between 2 and 15 miles from school and for all children attending grades 9 through 12 who live between 3 and 15 miles from school, the distances in each case being measured by the nearest available route from home to school (Education Law §3635[1][a]; Appeal of Trader, 43 Ed Dept Rep 191, Decision No. 14,967; Appeal of Wenger, 37 id. 5, Decision No. 13,790).  Transportation for a lesser or greater distance than that set forth in statute may only be provided upon approval by the voters of the district (Education Law §3635[1][a]; Appeal of Trader, 43 Ed Dept Rep 191, Decision No. 14,967; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  If such transportation is provided, it must be offered equally to all students in like circumstances residing in the district (Education Law §3635[1][a]; Appeal of Trader, 43 Ed Dept Rep 191, Decision No. 14,967; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  In this case, the voters in respondent’s district approved lesser distances -- for a sixth grade student, transportation is provided if the distance is one mile or more (District Policy #8410). 

A board of education is neither required to expend an unreasonable amount of time, effort or money in measuring distances for the purpose of determining eligibility for transportation, nor make such measurements with the accuracy of a professional survey (Appeal of Flemming, 43 Ed Dept Rep 391, Decision No. 15,028; Appeal of Schlick, 40 id. 207, Decision No. 14,462; Appeal of Stegner, 35 id. 502, Decision No. 13,613).  It is reasonable and sufficient to use an automobile odometer to measure distance to determine eligibility (Appeal of Schlick, 40 Ed Dept Rep 207, Decision No. 14,462; Appeal of Adamitis, 38 id. 765, Decision No. 14,137; Appeal of Jagoda, 34 id. 154, Decision No. 13,266).

A school district has broad discretion in selecting measurement points on school property for purposes of determining eligibility for transportation (Appeal of Flemming, 43 Ed Dept Rep 391, Decision No. 15,028; Appeal of Porzio, 42 id. 166, Decision No. 14,808).  It may measure transportation distances from any part of the school or a resident’s property, so long as it does so fairly and consistently (Appeal of Flemming, 43 Ed Dept Rep 391, Decision No. 15,028; Appeal of Porzio, 42 id. 166, Decision No. 14,808; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  Commissioner's decisions have upheld measurements using a variety of reference points, such as a corner of the school property (Appeal of Canossa, et al., 37 Ed Dept Rep 456, Decision No. 13,904), a side 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 (Matters of Silbert, et al. and Fitzpatrick, 1 Ed Dept Rep 283, Decision No. 6607).  Furthermore, there is nothing improper about a district using multiple entrances as a means to measure distance, provided a uniform policy is adopted (Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636; Matters of Silbert, et al. and Fitzpatrick, 1 id. 283, Decision No. 6607).

Although there were slight variations, at no time did any of respondent’s measurements indicate a distance between petitioner’s home and the middle school of one mile or more.  Nor did petitioner submit evidence establishing that the distance is one mile or more.  Additionally, petitioner’s argument that the district did not use a “legitimate” route for travel between his home and school fails because Education Law §3635 allows school districts to use the nearest available route between a student’s home and school to determine transportation eligibility, including walkways (Appeal of A Student With A Disability, 43 Ed Dept Rep 524, Decision No. 15,073; Appeal of Rosen, 37 id. 107, Decision No. 13,816).

Lastly, petitioner argues that his neighbors on Harvard Avenue are receiving transportation and maintains their houses are the same distance from the middle school as petitioner’s home.  Even if petitioner is correct and other students may be receiving transportation in violation of the district's policy, it is not a basis for granting the relief requested (Appeal of Kluge, 31 Ed Dept Rep 107, Decision No. 12,586).  If a board of education is providing transportation for a pupil who is not legally entitled to it, the solution is to discontinue such transportation (Appeal of a Student with a Disability, 43 Ed Dept Rep 524, Decision No. 15,073; Appeal of Turner, 40 id. 156, Decision No. 14,447; Appeal of Whitaker, 33 id. 59, Decision No. 12,974).

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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329) On the record before me I find that petitioner has failed to meet his burden of establishing his son’s entitlement to transportation based on mileage.

I have considered petitioner’s other claims and found them without merit.

THE APPEAL IS DISMISSED.

END OF FILE