Appeal of DAVID C. BRAUTIGAM from action of the Board of Education of the Cuba-Rushford Central School District regarding transportation.

Decision No. 15,772

(June 26, 2008)

Bouvier Partnership, LLP, attorneys for respondent, Chris G. Trapp, Esq., of counsel

Petitioner appeals the determination of the Board of Education of the Cuba-Rushford Central School District (“respondent”) to deny transportation for his daughters to a nonpublic school when district schools are not in session.  The appeal must be dismissed.

Petitioner’s two daughters attend the Houghton Academy (“Houghton”), a nonpublic school.  The parties agree that petitioner is a district resident and that Houghton is located more than three miles but less than fifteen miles from petitioner’s residence.  According to petitioner, the district provided transportation for his daughters to and from Houghton for at least three prior school years on all days of their legal attendance, weather permitting.

By letter dated February 15, 2007, petitioner submitted a transportation request for the 2007-2008 school year, which respondent approved on April 24, 2007.  According to petitioner, sometime in September 2007, the girls’ bus driver informed them that the district would no longer provide transportation to or from Houghton on any day or part of a day when district schools were not in session.

By letter to the superintendent dated September 24, 2007, petitioner requested clarification of this information.  By letter dated October 15, 2007, the superintendent informed petitioner that, after reviewing the matter from both an economic and legal standpoint, the district determined it was not legally obligated to provide transportation for nonpublic school students on days when the district is not in session.  The superintendent also informed petitioner that this policy had been communicated to affected families and nonpublic schools.

Petitioner asserts that on September 24 and October 23, 2007, district schools were in session only in the morning and the district refused to provide transportation for his daughters from Houghton at the end of their school day.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 26, 2007.

Petitioner contends that respondent violated Education Law §3635 by refusing to transport his daughters on days that they legally attend Houghton.  He also contends that respondent is violating its prior approval of his transportation request and its past practices.  Petitioner requests that I direct respondent to provide transportation for his daughters to Houghton every day that they legally attend there.

Respondent contends that it is in compliance with Education Law §3635 and is not obligated to transport students on days when the district is not in session.  It asserts that the superintendent notified Houghton’s Headmaster of this policy by letter dated September 5, 2007, that petitioner had sufficient notice of the policy and that it is not obligated to continue to provide transportation even if it did so in the past.

I must first address a procedural issue.  Pursuant to §276.4 of the Commissioner’s regulations, respondent was required to serve its memorandum of law within 30 days after service of respondent’s answer.  Under this rule, respondent’s memorandum was due on December 28, 2007.  However, respondent did not serve its memorandum until January 10, 2008.  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]), there has been no such showing here.  I find unavailing respondent’s excuse that its counsel was on vacation when petitioner’s memorandum of law was submitted. The 30-day period runs from the date of respondent’s answer, not the submission of petitioner’s memorandum.  Therefore, I have not considered respondent’s untimely memorandum of law (Appeal of Curran, 44 Ed Dept Rep 470, Decision No. 15,235).

Education Law §3635(1)(a) provides in pertinent part that “transportation shall be provided for all children . . . attending grades nine through twelve who live more than three miles from the school which they legally attend and shall be provided . . . up to a distance of fifteen miles . . . .”  A district’s legal responsibility to provide transportation includes the mandate to do so in a reasonable and economical fashion (Appeal of Clancy, 37 Ed Dept Rep 280, Decision No. 13,859).  Boards of education have the responsibility and the authority to decide the difficult questions involved in balancing the overall efficiency and economy of a transportation system against the convenience of individual pupils (Appeal of Cooper, 35 Ed Dept Rep 118, Decision No. 13,484).

Furthermore, the obligation of a school district to provide transportation for students attending nonpublic schools is not absolute (Matter of Berger, 22 Ed Dept Rep 443, Decision No. 11,028).  Public and nonpublic school authorities have an obligation to cooperate in a reasonable manner in the scheduling of classes and transportation (Appeal of Willer, 35 Ed Dept Rep 389, Decision No. 13,580; Appeal of Cornerstone Christian School, et al., 30 id. 452, Decision No. 12,532; Appeal of Hacker, 28 id. 141, Decision No. 12,058).  There have been several instances in which the adoption of unreasonable or erratic schedules has relieved the public school authorities of the responsibility for arranging transportation to meet those schedules (seeMatter of Berger, 22 Ed Dept Rep 443, Decision No. 11,028; Matter of Hamilton, 21 id. 30, Decision No. 10,586).

In this case, Houghton has chosen to adopt a school schedule of operation that does not coincide with the district’s schedule of operation.  To accommodate this, the district would have to transport students to Houghton on days when its own schools are not in operation and busing is not available.  Although respondent does not specify the amount of increased costs it would incur, it asserts that additional labor costs and vehicular costs for maintenance and fuel would result.  Under these facts, I cannot find respondent’s determination to be improper, unreasonable, or in violation of law.

In addition, there is no merit to petitioner’s claim that a right to transportation was created by respondent’s prior provision of services.  The fact that respondent transported petitioner’s daughters in prior years does not estop respondent from declining to provide such transportation (Appeal of A Student with a Disability, 43 Ed Dept Rep 524, Decision 15,073; Appeal of Robert G., 32 id. 60, Decision No. 12,758, Appeal of McMillan, 31 id. 343, Decision No. 12,661).

THE APPEAL IS DISMISSED.

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