Appeal of GREGORY KELLER, on behalf of his daughter ELIZABETH, from action of the Board of Education of the Great Neck Union Free School District regarding transportation.

 

Decision No. 15,677

(October 17, 2007)

 

Ehrlich, Frazer & Feldman, attorneys for respondent, Christie R. Medina and James H. Pyun, Esqs., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Great Neck Union Free School District (“board” or “respondent”) denying his request for transportation to a nonpublic school.  The appeal must be dismissed.

On March 6, 2007, petitioner requested transportation for his daughter, Elizabeth, to the Brearley School (“Brearley”), a nonpublic school located in Manhattan, for the 2007-2008 school year.  By letter dated March 7, 2007, respondent’s transportation supervisor denied petitioner’s request on the grounds that Elizabeth resides more than 15 miles from Brearley.

On March 12, 2007, petitioner wrote to the board president, requesting that Elizabeth be transported on a bus taking district students to Ramaz, a nonpublic Jewish school located near Brearley in Manhattan.  By letter dated March 29, 2007, the superintendent denied petitioner’s request.  Petitioner addressed the board at a public meeting on May 7, 2007, and the board president affirmed the superintendent’s determination by letter dated June 4, 2007.  This appeal ensued.

Petitioner claims that respondent is required to transport Elizabeth directly to Brearley or allow her to ride respondent’s bus to Ramaz.  In support of his claim, petitioner argues that respondent’s “current transportation program to Ramaz exceeds the authority granted to it by Education Law §3635.”  Petitioner also maintains that respondent’s denial of his transportation request “presents significant issues under the First Amendment.”

Respondent contends that the district is not obligated to provide transportation to Elizabeth because Brearley is located more than 15 miles from her home.  Respondent also asserts that it is authorized to transport district students to Ramaz under §3635(1)(b)(ii) because it has done so for at least one of the immediately preceding three school years.  Respondent points out that it has not provided such transportation to any district student attending Brearley.  Finally, respondent argues that to the extent petitioner raises issues of constitutional law, the Commissioner lacks jurisdiction to address them.

I must first address petitioner’s reply.  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 Rep487, 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, 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.

Education Law §3635(1) establishes a 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 (Education Law §3635[1][a]; Appeal of Bittlingmaier, 45 Ed Dept Rep 213, Decision No. 15,305; Appeal of Heffernan, 43 id. 447, Decision No. 15,046; Appeal of Porzio, 42 id. 166, Decision No. 14,808).  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 extended by local district policyafter approval by district voters (Education Law §3635[1][a]; Appeal of Bittlingmaier, 45 Ed Dept Rep 213, Decision No. 15,305; Appeal of Heffernan, 43 id. 447, Decision No. 15,046; Appeal of Porzio, 42 id. 166, Decision No. 14,808).

Additionally, transportation may also 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 pick-up points, and must provide transportation between such pick-up 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 pick-up points to any nonpublic school to which regular home-to-school transportation is not already being provided (Appeal of Bittlingmaier, 45 Ed Dept Rep 213, Decision No. 15,305; Appeal of Heffernan, 43 id. 447, Decision No. 15,046; Appeal of Porzio, 42 id. 166, Decision No. 14,808).

Education Law §3635(1)(b)(ii) further states that a board of education "may, at its discretion," provide transportation from a centralized pick-up 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 (Appeal of Bittlingmaier, 45 Ed Dept Rep 213, Decision No. 15,305; Appeal of Lucente, 40 id. 455, Decision No. 14,526; Appeal of Goldstein, 40 id. 159, Decision No. 14,448). When a school district exercises its discretion to provide transportation pursuant to Education Law §3635(1)(b)(ii), the statute requires that the distance from the centralized pick-up point to the nonpublic school must not be more than 15 miles (Appeal of Bittlingmaier, 45 Ed Dept Rep 213, Decision No. 15,305; Appeal of Turner, 40 id. 156, Decision No. 14,447; Appeal of Bank, et al., 40 id. 141, Decision No. 14,442).

Petitioner argues that transportation is not being provided pursuant to Education Law §3635(1)(b) because the centralized pick-up point is at a Jewish synagogue, not a public school, and because it is more than 15 miles from Ramaz.  Petitioner argues that transportation must be provided equally to children in like circumstances.  Petitioner therefore contends that Elizabeth, like Ramaz students who live more than 15 miles from school, should receive transportation.

Respondent admits that it has used the synagogue as a pick-up point for Ramaz students. It explains that this appeal has called attention to the propriety of the pick-up point and that it is investigating the relocation of its pick-up point to a public school for the 2007-2008 school year.

However, even if other students are inappropriately receiving transportation, that is not a basis for granting the relief requested (Appeal of Schwab, 47 Ed Dept Rep __, Decision No. 15,630; Appeal of Kluge, 31 id. 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).Further, the fact that respondent transports district students to a school in close proximity to Brearley does not entitle Elizabeth to transportation for which she is otherwise ineligible (Appeal of Lucente, 40 Ed Dept Rep 455, Decision No. 14,526; Appeal of Hinkley, 37 id. 431, Decision No. 13,897).

In his reply, petitioner also claims that the district  must be using a “straight line” method of measurement for either the current or proposed pick-up point to be within 15 miles of Ramaz.  He contends that, using that method of measurement, Elizabeth’s residence is located less than 15 miles from Brearley.  In support of his claim, petitioner submits a webpage that used a “global positioning system” to calculate the “straight-line” distance between the two locations as 11.692 miles.  However, the proper route for purposes of measurement for transportation eligibility is the nearest available publicly maintained route between a residence and the school (Appeal of Rosen, 37 Ed Dept Rep 107, Decision No. 13,816).  Therefore, the fact that the distance between petitioner’s home and Brearley may be less than 15 miles when calculated using this method does not entitle Elizabeth to transportation.

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 Elizabeth’s entitlement to transportation to a nonpublic school.

Finally, petitioner claims that respondent’s refusal to transport Elizabeth violates the First Amendment.  However, 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).

 

THE APPEAL IS DISMISSED.

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