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Decision No. 15,762

Appeal of SHERYL-ANNE SASTOW, on behalf of her daughter EDEN ROBBINS, from action of the Board of Education of the Plainview-Old Bethpage Central School District regarding transportation.

Decision No. 15,762

(June 11, 2008)

Bondi & Iovino, Esqs., attorneys for petitioner, Anthony F. Iovino and Desiree Lovell Fusco, Esqs., of counsel

Guercio & Guercio, attorneys for respondent, Barbara P. Aloe, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the refusal of the Board of Education of the Plainview-Old Bethpage Central School District (“respondent”) to provide transportation to her daughter, Eden, to a nonpublic school.  The appeal must be dismissed.

Petitioner and Eden reside on Maplewood Drive, Plainview, New York.  Eden is a middle school student at North Shore Hebrew Academy (“NSHA”), a multi-campus facility comprising three separate addresses in Great Neck, New York.  The NSHA Middle School is located on Old Mill Road, Great Neck.  Petitioner concedes that the middle school is located more than 15 miles from her home.

Prior to September 2007, in addition to the middle school, NSHA operated two other school buildings: a high school on Community Drive, Great Neck, and an elementary school on Cherry Lane, Kings Point.  Prior to September 2007, respondent provided bus transportation for petitioner’s daughter, other middle school students, and high school students from their homes to the high school located on Community Drive.  At that location, the high school students entered the building, while the middle school students were then transported by a bus privately operated by NSHA from the high school to the middle school.

On October 26, 2005, respondent advised petitioner and other middle school parents that transportation would be discontinued as of November 11, 2005, because the students were not eligible for transportation to the middle school.  Petitioner then commenced a successful Article 78 proceeding which annulled respondent’s determination, and continued transportation of both middle school and high school students to the high school on Community Drive (Memorandum and Order, Supreme Court, Nassau County, Galasso, J., dated March 30, 2006, entered April 3, 2006).  Respondent appealed to the Appellate Division, Second Department, which reversed on October 30, 2007. Transportation to the high school, however, was continued pursuant to a stay issued by the court.  The stay expired on January 18, 2008.

In the meantime, this appeal was commenced on December 27, 2007.  Requests for interim relief were denied in January 2008.

During the course of this appeal, counsel for both parties apparently learned that the NSHA High School on Community Drive had been closed and that high school operations had been moved in September 2007 to a location on North Service Road, Great Neck.  Counsel also learned that respondent had been providing transportation since September 2007 for both middle school and high school students to the high school on North Service Road (rather than Community Drive) during the pendency of the Article 78 proceeding and the appeal that followed.

Petitioner originally contended that respondent was required to provide transportation to her daughter because she resided within 15 miles of the NSHA High School on Community Drive, which petitioner argued could be considered the school she “legally attends” because middle school students sometimes received instruction there.  It has now become apparent that the new high school on North Service Road, Great Neck, is not located within 15 miles of petitioner’s home.  Petitioner now apparently contends that there is at least one high school student who is an “anchor student” in the district, and who resides within 15 miles of the new high school, “and, therefore, petitioner would be entitled to District-funded transportation if it were determined that the school she legally attends is located at 400 North Service Road.”

Respondent contends, and petitioner concedes, that petitioner’s daughter legally attends the NSHA Middle School located on Old Mill Road, Great Neck, which is located more than 15 miles from petitioner’s home.  Petitioner also concedes, by affirmation of counsel, that “NSHA Middle School students are primarily instructed at the ... Old Mill Road location ....”  Respondent contends that petitioner’s daughter is therefore not entitled to transportation, and further claims that it has never transported any district student to the NSHA Middle School, and that neither Education Law §3635(1)(b)(i) nor §3635(1)(b)(ii) applies to middle school transportation.  Respondent therefore argues that petitioner’s daughter is not entitled to transportation under any provision of Education Law §3635.

Petitioner has always conceded that she does not live within 15 miles of the NSHA Middle School, and the record indicates that she does not live within 15 miles of the new high school.  Respondent states that it has never, and does not now, transport any student to the middle school, and petitioner does not dispute that fact.  As a result, petitioner’s daughter is not entitled to transportation to the middle school under Education Law §3635(1)(b)(i) because there is no current “anchor student” who lives within 15 miles of the middle school, and is not entitled to transportation under Education Law §3635(1)(b)(ii) as there has been no “anchor student” transported to the middle school during the previous three school years.

Petitioner originally argued that NSHA is a single legal entity and thus her daughter “legally attends” any (or all) of its three buildings.  Petitioner originally argued that since she lived within 15 miles of one of those three buildings, i.e., the former high school, she was entitled to transportation to that building.

Since the high school moved in September 2007, it is now clear that petitioner does not live within 15 miles of any NSHA building, so her daughter has no right to transportation to any school pursuant to Education Law §3635(1)(a).  Petitioner now concedes that her daughter’s right to transportation (to the new high school from a public school designated as a centralized pick-up point), if any, depends on the existence of an “anchor student” who is transported as a matter of right to the new high school, and, in addition, a finding that her daughter “legally attends” the new high school.

The evidence is to the contrary.  I do not accept the theory that, because NSHA is a single legal entity which operates three different school buildings, its students “legally attend” any or all of them for purposes of Education Law §3635.  A public school district is also a single legal entity, but its students do not “legally attend” all of the schools it operates (seeAppeal of Nicotri, 38 Ed Dept Rep 80, Decision No. 13,987).  The statute clearly refers to a particular school building where a student receives instruction and is legally entitled to attend.  For purposes of determining eligibility for transportation, I see no logical reason to apply different rules for public and nonpublic schools which operate multiple school buildings.

The record does not support a claim that petitioner’s daughter “attends” the NSHA High School.  The record establishes, instead, that petitioner’s daughter, together with other middle school students, receives the vast majority of her instruction at the middle school building on Old Mill Road.  I therefore find that petitioner’s daughter “legally attends” the middle school, and not the new high school.

I conclude that petitioner has not established that her daughter is entitled to transportation under any provision of Education Law §3635.

In light of this disposition, it is not necessary to consider the parties’ other claims.

THE APPEAL IS DISMISSED.

END OF FILE