Appeal of JEFFREY and KAREN GORSKY, on behalf of their children COLLEEN and CASSIDY, from action of the Board of Education of the City School District of the City of Ithaca regarding transportation.

Appeal of ILLA and DAVID BURBANK, JEFFRA RUESINK, DYLAN KUCKES, ESTHER GREENHOUSE, CYNTHIA HANNAH-WHITE and MELISSA PRUITT, on behalf of their children, from action of the Board of Education of the City School District of the City of Ithaca regarding transportation.

Decision No. 15,658

(August 31, 2007)

Edward E. Kopko, Esq., attorney for petitioners in the first appeal

Williamson, Clune & Stevens, attorneys for petitioners in the second appeal, Robert J. Clune, Esq., of counsel

Bond, Schoeneck & King, PLLC, attorneys for respondent, Subhash Viswannathan, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the policy of the Board of Education of the City School District of the City of Ithaca (“respondent”) regarding transportation of nonpublic school students.  Because these appeals raise similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

Petitioners are parents of children who attend nonpublic schools in respondent’s district.  The Gorsky petitioners have children of elementary school age who attend the Immaculate Conception School (“ICS”).  The Burbank petitioners each have children, most of whom are of elementary school age, who attend the Elizabeth Ann Clune Montessori School of Ithaca (“EAC Montessori School”).  Both of these schools are located in respondent’s district, and petitioners all live within 15 miles of the nonpublic school that their respective children attend.

Prior to the 2006-2007 school year, respondent provided direct transportation (i.e. transportation without the use of a central transfer point) for petitioners’ children to and from their respective schools, and petitioners’ children were presumably delivered to their respective schools prior to their designated start times.[1]

On December 20, 2005, respondent approved a plan to synchronize the starting and ending times of its public schools.  Prior to the 2006-2007 school year, respondent’s eight elementary schools, two middle schools and its high school all operated on varying schedules.  Now, however, all of Respondent’s elementary schools operate from 8:00 a.m. to 2:00 p.m., its two middle schools operate from 9:10 a.m. to 3:25 p.m., and its high school operates from 8:55 a.m. to 3:32 p.m.

For purposes of transportation, respondent’s scheduling change allowed it to switch from a “multi-tiered” transportation system (where individual buses would make multiple runs) to a “two-tier” transportation system where all of its buses make two runs (i.e. one for its elementary school students and another for its middle and high school students).  As a result, respondent also changed its method for transporting petitioners’ children.  Instead of transporting petitioners’ children directly to the schools that they attend, respondent uses its high school bus runs to transport them to its high school, where they transfer to a second bus which takes them to their respective schools each morning.  This process is then reversed at the end of each school day.  To accommodate this plan, respondent requested ICS, which has an 8:00 a.m. to 2:00 p.m. school day, to adopt a 9:00 a.m. to 3:00 p.m. schedule.

Petitioners argue, among other things, that Education Law §3635 requires that their children be transported directly (i.e. without the use of a centralized transfer point) to and from their respective nonpublic schools.  In addition, petitioners claim that respondent’s transportation plan is unequal and discriminatory because public school students of like age are transported directly to their respective schools, are not required to ride a bus with secondary school students and have shorter ride times then their children.  In addition, the Gorsky petitioners argue that their children are entitled to transportation to ICS that will allow their children to arrive at school by 8:00 a.m., and that respondent lacked a rational basis for asking ICS to change its starting and dismissal times.   The Burbank petitioners argue that respondent’s transportation plan is unreasonable because their children will not be delivered to school on time, and that this, together with respondent’s required dismissal time in the afternoon, results in a shorter instructional day.

Respondent contends that both of petitioners’ petitions should be dismissed as untimely.  In addition, respondent denies that its transportation plan violates the Education Law and claims that its transportation is the most practical and economical transportation it can provide.  Respondent, therefore, asserts that its request that ICS change its operating schedule was rational, and argues that while some EAC Montessori School students may arrive late to school, such a delay is de minimis and that the EAC Montessori School can maintain a schedule that is “extremely close” to its current six hours per day.

Before addressing the merits, I must address a number of procedural issues.  First, both sets of petitioners have submitted a reply for my consideration. 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 E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply in both appeals, 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.

In addition, by letter dated September 12, 2006, the Burbank petitioners requested permission to file a “reply memorandum of law” which was ultimately served upon respondent’s attorney on October 24, 2006.  Pursuant to §276.4 of the Commissioner's regulations, reply memoranda of law may be accepted only with the prior approval of the Commissioner (Appeal of Dunshee, 44 Ed Dept Rep 414, Decision No. 15,216; Appeal of Schadtle, 40 id. 60, Decision No. 14,421).  Here, the Burbank petitioners had an opportunity to file and serve a memorandum of law within 20 days after the service of the respondent’s answer (see 8 NYCRR §276.4).  Since respondent’s answer was served via first class mail on September 7, 2006, it is not clear why the Burbank petitioners could not have submitted a memorandum of law within this timeframe.  Accordingly, I deny the request.  Moreover, while the Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal (8 NYCRR §276.4[a]), I find that no such showing was made here. I have therefore not considered the Burbank petitioners’ reply memorandum of law.[2]

By letter dated November 7, 2006, respondent submitted two “Reply Affidavits” for my consideration in the Burbank appeal. These affidavits contain information related to, among other things, how respondent’s transportation policy has been working in practice with respect to EAC Montessori School students since the beginning of the 2006-2007 school year.  To the extent that these submissions contain information that was not fully available until after the submission of respondent's answer and is directly related to the issues in this appeal, I will accept them pursuant to §276.5 of the Commissioner’s regulations.

Both sets of petitioners seek to maintain this appeal on behalf of a class of students that attend their children’ respective schools.  An appeal may only be maintained on behalf of a class 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 (8 NYCRR §275.2; Appeal of Hempstead Parents/Community United, 45 Ed Dept Rep 381, Decision No. 15,357; Appeal of Hempstead Parents/Community United, 45 id. 354, Decision No. 15,346; Appeal of Ockimey, 44 id. 169, Decision No. 15,136).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Hempstead Parents/Community United, 45 Ed Dept Rep 381, Decision No. 15,357; Appeal of Hempstead Parents/Community United, 45 id. 354, Decision No. 15,346; Appeal of Garmaeva, 43 id. 253, Decision No. 14,988).  Here, the Burbank petitioners have failed to identify the number of individuals that they seek to represent, so their request for class status must be denied.  In addition, the Gorsky petitioners allege that they seek to maintain this appeal on behalf of only 24 other ICS students.  I do not find 24 students, however, to be sufficiently numerous as to justify maintenance of a class appeal (seee.g.Appeal of Graham, 39 Ed Dept Rep 498, Decision No. 14,292; Appeal of Reynolds & Mirakian, 35 id. 327, Decision No. 13,559).  Accordingly, the Gorsky’s request for class status is also denied.

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).  Here, respondent claims that it gave ICS and the EAC Montessori School notice of its transportation plans far in advance of the 2006-2007 school year, and that, with respect to the EAC Montessori School, it met with both school representatives and parents to discuss these plans on July 5, 2006.  Petitioners, however, contend that they first received notice of respondent’s plan by letters dated June 20, 2006 (Gorsky) and July 17, 2006 (Burbank), respectively, and that, as a result, their appeals were both commenced in a timely fashion.

The Commissioner has, on occasion, exercised his discretion to allow late appeals where a petitioner did not have sufficient facts to bring the appeal until well after the expiration of the regulatory 30-day period (Appeal of Miller, 36 Ed Dept Rep 390, Decision No. 13,758; Appeal of Myers, 34 id. 238, Decision No. 13,294).  Though petitioners do not dispute that respondent may have notified ICS and/or the EAC Montessori School of its transportation plans well before their appeals were commenced, it is not clear from the record before me that petitioners learned of these plans at that time.  I will therefore not dismiss petitioners’ appeal as untimely.

However, I find that the Gorsky appeal must be dismissed to the extent that it alleges that respondent’s policies violate the United States Constitution.  An appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a regulation (Appeal of Murray, 43 Ed Dept Rep 400, Decision No. 15,031; Appeals of American Quality Beverages, LLC, et al., 42 id. 144, Decision No. 14,804; Appeal of Finkel, 41 id. 74, Decision No. 14,619).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeals of American Quality Beverages, LLC, et al., 42 Ed Dept Rep 144, Decision No. 14,804).

Likewise, the Gorsky’s appeal must also be dismissed to the extent that they premise their claims solely upon alleged violations of New York State Education Department guidance.  While this guidance makes general recommendations which, as petitioners correctly note, have probative value when considering what may or may not be reasonable in particular circumstances, such recommendations are not mandated by statute or regulation (seeAppeal of Kinkead, 45 Ed Dept Rep 511, Decision No. 15,398).  Thus, while I will consider this guidance as it relates to the issues raised by petitioners, it alone does not provide an independent basis upon which to grant petitioners the relief that they seek.

A city school district may, but is not required to, provide transportation to students (Education Law §3635[1][c]).  Where such district elects to provide transportation, it must do so equally to all students in like circumstances (Education Law §3635[1][c]; SandsPoint Academy, et al. v. Bd. of Educ., 63 Misc 2d 276; Appeal of Giordano, 40 Ed Dept Rep 365, Decision No. 14,499).  A board of education has broad discretion to determine how transportation is to be provided (Appeal of Del Prete, 40 Ed Dept Rep 148, Decision No. 14,444; Appeal of Reich, 38 id. 565, Decision No. 14,094; Appeal of Broad, 35 id. 248, Decision No. 13,530).  In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of Del Prete, 40 Ed Dept Rep 148, Decision No. 14,444; Appeal of Reich, 38 id. 565, Decision No. 14,094; Appeal of Byrne, et al., 34 id. 389, Decision No. 13,355).  Moreover, a board of education has both the responsibility and the authority to decide difficult questions in balancing the overall efficiency and economy of a transportation system against the convenience of individual students (Appeal of Del Prete, 40 Ed Dept Rep 148, Decision No. 14,444; Appeal of Reich, 38 id. 565, Decision No. 14,094; Appeal of Polifka, 31 id. 61, Decision No. 12,569).

As an initial matter, petitioners’ contention that Education Law §3635 requires respondent to directly transport their children to and from their respective nonpublic schools is incorrect.  While prior commissioner’s decisions have addressed the use of “centralized pick-up points”[3] and determined their use to be inappropriate in circumstances similar to those presented here, respondent’s transportation plan does not utilize “centralized pick-up points.”  Rather, respondent’s plan utilizes a centralized transfer point to and from which respondent provides transportation and at which petitioners’ children simply change buses.  Unlike the use of “centralized pick-up points” which are allowed only in instances where students live too far away from a nonpublic school to otherwise qualify for transportation (seee.g. Education Law §3635[1][b]), §3635 contains no such restrictions on the use of centralized transfer points.  Accordingly, respondent’s use of a centralized transfer point alone does not violate Education Law §3635 and, to the extent that any previous decisions by the Commissioner in appeals filed pursuant to Education Law §310 may be interpreted to the contrary, those decisions are expressly overruled.

Moreover, I am unable to find on the record before me that respondent’s transportation plan is discriminatory or otherwise violates §3635[1][c] of the Education law.  The mere fact that respondent may use a variety of means to transport children to and from their respective schools (i.e. a single bus, two buses, a mini-van and a bus, etc.) does not necessarily demonstrate that students are receiving unequal treatment within the meaning of Education Law §3635 (Appeal of McCarthy & Bacher, 42 Ed Dept Rep 329, Decision No. 14,872; Appeal of Fullam, 38 id. 227, Decision No. 14,021; Appeal of Broad, 35 id. 248, Decision No. 13,530).  Nor does the fact that petitioners’ children ride a bus with high school students mean they are being treated unfairly (seee.g.Appeal of Brassard, 33 Ed Dept Rep 497, Decision No. 13,127; Appeal of Tette, 21 id. 347, Decision No. 10,709; Appeal of McBennett, 17 id. 404, Decision No. 9669).  In fact, in Appeal of Brassard, 33 id 497, Decision No. 13,530, a transportation plan similar to respondent’s was upheld, despite the fact that school-aged, nonpublic school students were required to ride a bus with high school students to a central transfer point.

Petitioners’ allegation -- that their children’s bus ride times will increase under respondent’s plan (in some instances, up to 90 minutes one way) –- does not necessarily show that respondent’s plan is discriminatory or a violation of Education Law §3635.  While the bus ride times for petitioners’ children may increase under respondent’s plan, there is nothing in the record before me from which I can conclude that this is true for all students attending ICS or the EAC Montessori School in respondent’s district and/or that respondent adopted this plan to discriminate against nonpublic schools or their students (seee.g.Appeal of Capozza, 25 Ed Dept Rep 15, Decision No. 11,482).  Neither the Education Law nor the Commissioner’s regulations specify maximum time limits for the transportation of students (seee.g.Appeal of McCarthy and Bacher, 42 Ed Dept Rep 329, Decision No. 14,872; Appeal of Fullam, 38 id. Rep 227, Decision No. 14,021).  In fact, prior Commissioner’s decisions have upheld one-way student commutes of one and one-half hours as not excessive (Appeal of Reich, 38 Ed Dept Rep 565, Decision No. 14,094; Appeal of Lavin, 32 id. 249, Decision No. 12,821).

Nor am I able to find on the record that respondent’s transportation plan is unreasonable.  It is undisputed that respondent’s district encompasses approximately 155 square miles with unique geographical features such as a lake that intersects the district and several deep gorges and hills.  Within this area, respondent has adopted a policy of transporting approximately 5700 students to eight public elementary schools, two public middle schools, an alternative community school, a public high school and six nonpublic schools, all of which are situated in different locations throughout the district and beyond.  Unlike respondent’s public elementary school students who each live within their respective school’s attendance zone, children who attend ICS and the EAC Montessori school live throughout respondent’s district.  Under these circumstances, I am unable to find that transporting petitioner’s children on respondent’s high school bus runs (which make runs throughout respondent’s district) to its high school (which is centrally located within the district) is irrational or an abuse of discretion.

Petitioners, however, argue that requiring their children to ride a bus with respondent’s high school students and/or forcing them to transfer at its high school is dangerous and will expose them to a vulgar and unsafe environment.  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).  Here, petitioners offer no evidence to support this contention.  To the extent that respondent’s high school students may allegedly use foul language or exhibit “inappropriate behavior,” these issues relate to matters of discipline and “provide no basis for a conclusion that elementary and secondary school pupils should not be required to ride the same bus” (Appeal of McBennett, 17 Ed Dept Rep 404, Decision No. 9669).

The Gorsky petitioners also allege that respondent’s transportation plan creates circumstances which are contrary to its stated purpose and will result in increased labor and fuel costs for the district.  In addition, they claim that, contrary to respondent’s assertions, it did not consider the costs of its transportation plan or consider other transportation arrangements for nonpublic school students. Here again, though, no evidence is offered to substantiate these claims, and I find that they are not supported by the record.

Finally, both groups of petitioners complain about the time at which their children arrive at their respective schools.  The Gorsky petitioners claim that their children are entitled to transportation in time for ICS’s 8:00 a.m. start time, and that respondent lacked a rational basis for requesting that ICS change its starting and ending times to accommodate its transportation plan.  Likewise, the Burbank petitioners contend that, due to the times that students are dropped off in the morning and picked up in the afternoon, the EAC Montessori School will be unfairly forced to reduce its instructional day.

The Education Law does not require a board of education to transport children attending nonpublic schools in all circumstances (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of Salvia, 36 id. 365, Decision No. 13,750).  Public and nonpublic school authorities are obligated to cooperate in a reasonable manner in the scheduling of classes and transportation (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of Salvia, 36 id. 365, Decision No. 13,750).  Although public school authorities may not dictate the opening or closing hours for a nonpublic school, the adoption of unreasonable or erratic schedules may relieve public school authorities of the responsibility for arranging transportation to meet those schedules (Appeal of Reilly, 46 Ed Dept Rep __, Decision No. 15,479; Appeal of Salvia, 36 id. 365, Decision No. 13750; Matter of Berger, 22 id. 443, Decision No. 11,028).

I find that, on the record before me, the Gorsky petitioners have failed to show that respondent’s request that ICS modify its school day was unreasonable.  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).  Here, respondent alleges (and the Gorsky petitioners do not deny) that it asked ICS to change its starting and ending times to both accommodate its synchronization plan and to be consistent with the starting and ending times at other nonpublic schools to which it transports students.  While petitioners allege that respondent failed to cooperate with ICS, the record does not contain any statements from ICS officials to this effect, nor does it contain any explanation as to why ICS might be unable to accommodate respondent’s request.  I therefore find that the Gorsky petitioners have not met their burden in this regard.

Regarding the claims made by the Burbank petitioners, it appears from the record that the instructional day of the EAC Montessori School runs from 9:00 a.m. to 3:00 p.m.  In addition, respondent claims (and petitioners do not deny) that most students are being delivered to the EAC Montessori School by 8:55 a.m. each morning, and that all students are picked up from the school to be transported home at 3:15 p.m.  With respect to these students, I find respondent’s transportation to be reasonable.  However, it appears from the record that at least some students are not arriving at the EAC Montessori School until as late as 9:10 a.m. each day.  With respect to these students, respondent maintains that this delay is de minimis and reasonable since it allows for the provision of transportation in the most economical manner.

A transportation scheme that consistently delivers students late to a nonpublic school is not a reasonable transportation arrangement (Appeal of Johnson, 27 Ed Dept Rep 82, Decision No. 11,878; Appeal of Jeffers, 26 id. 408, Decision No. 11,804).  However, where a nonpublic school authority can reasonably adjust its starting time to accommodate a district’s otherwise reasonable transportation plan, it is obligated to do so (seee.g.Appeal of Post, 33 id. 151, Decision No. 13,006).

Here, the record reflects that the EAC Montessori School’s ability to adjust its school day to accommodate respondent’s morning drop-off times may be restricted by respondent’s afternoon pick-up times.   I am unable to determine on the record before me, however, whether this is in fact the case, or whether the parties can reach a reasonable alternative.  Therefore, I have no basis for declaring respondent’s transportation policy unreasonable.

Although I am dismissing the Burbank petitioners’ appeal, I urge the parties thereto to work cooperatively with each other to find a reasonable solution in this matter.  To this extent, I remind respondent that while considerations of economy cannot be ignored, a board of education may not be influenced by economic considerations to the point of failing to provide transportation which is reasonable (seee.g.Appeal of Frasier, 35 Ed Dept Rep 499, Decision No. 13,612).  In addition, to the extent that respondent may be able to accommodate an otherwise reasonable schedule with only a slight modification to its busing schedule, it may be required to do so (id.)

I have considered the parties remaining contentions and find them to be without merit.

THE APPEALS ARE DISMISSED.

END OF FILE

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