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Decision No. 15,804

Appeal of MARIA and DANIEL KREVOY, on behalf of their children BRANDON and SARA, from action of the Board of Education of the Lawrence Union Free School District regarding transportation.

Decision No. 15,804

(August 1, 2008)

Minerva & D'Agostino, P.C., attorneys for respondents, Albert A. D’Agostino, Esq., of counsel

Petitioners appeal the determination of the Board of Education of the Lawrence Union Free School District (“respondent”) denying their request for transportation from a nonpublic school to an after-school child care provider for their children, Brandon and Sara.  The appeal must be dismissed.

On or about March 26, 2007, petitioners, residents of respondent’s district, made a request for transportation to The Kew Forest School ("Kew Forest"), an out-of-district nonpublic school, for their children.  The request was approved.

In August 2007, petitioners requested transportation for their children to an after-school child care provider located near Kew Forest, also located outside respondent’s district.

By letter dated October 2, 2007, respondent's attorney notified Mrs. Krevoy that Education Law §3635(1)(e) requires that a child care provider’s location be situated within respondent’s district for transportation to be authorized.  By letter dated October 4, 2007, respondent’s superintendent denied the request.  This appeal ensued.  Petitioners’ request for interim relief was denied on November 1, 2007.

Petitioners argue that they are entitled to transportation on an equal basis with all children residing in respondent’s district.  They argue that the statute only covers children who attend school within the district and that denying their request is contrary to legislative intent.  They contend that Education Law §3635(1)(e) should be read to require respondent to provide transportation to a child care provider outside the district, but within the school district of the school the child “legally attends.”  Furthermore, they argue that respondent has failed to use its discretion to “liberally” apply the provisions of Education Law §3635.  Petitioners further claim that their children’s child care provider is located only two miles from Kew Forest, as opposed to their home, which is a distance of 13 miles.  Thus, they argue that transportation to the child care provider is economically beneficial to respondent.  Petitioners request a determination that the children are entitled to transportation from Kew Forest to the child care location.

Respondent alleges that petitioners have failed to state a cause of action and failed to exhaust their administrative remedies.  Respondent contends that, at all times, its actions were legal and that Education Law §3635 does not authorize the district to provide transportation to child care providers located outside the district regardless of the school “legally attended.”

Initially, I will address a procedural issue.  Respondent argues that the appeal must be dismissed for failure to exhaust administrative remedies because petitioners did not appeal to respondent.  However, respondent has failed to articulate any requirement in statute, regulation or board policy which would require petitioners to appeal to the board of education before exercising their right to initiate an appeal pursuant to Education Law §310.  Consequently, there is no basis to dismiss this appeal for failure to exhaust administrative remedies (Appeal of Hobbs, 38 Ed Dept Rep 203, Decision No. 14,015; Appeal of Deleewerk, 37 id. 453, Decision No. 13,903).

The appeal, however, must be dismissed on the merits. Under Education Law §3635(1)(e), boards of education have the discretion to determine whether to offer transportation between schools located within the district and child care programs located within the district (Appeal of a Student Suspected of Having a Disability, 38 Ed Dept Rep 507, Decision No. 14,081; Appeal of Grove, 33 id. 176, Decision No. 13,016; Appeal of Albert, 27 id. 371, Decision No. 11,979).  If a board elects to provide transportation to a child care location, it may limit such transportation to child care locations within the child’s attendance zone, with the exception of child care locations licensed pursuant to Social Services Law §390, where transportation must be provided district-wide (Education Law 3635[1][e]; Appeal of a Student Suspected of Having a Disability, 38 Ed Dept Rep 507, Decision No. 14,081; Appeal of Grove, 33 id. 176, Decision No. 13,016).

Education Law §3635(1)(e) specifically limits a school district’s authority to provide transportation to child care locations "situated within the school district" (Appeal of a Student Suspected of Having a Disability, 38 Ed Dept Rep 507, Decision No. 14,081).  Thus, there is no statutory authority for a school district to provide transportation to a child care location outside of the school district.  It is undisputed that petitioners’ child care provider is located outside respondent’s district. Consequently, petitioners’ children are not entitled to the requested transportation.

Petitioners’ claim that there would be little cost to provide the requested transportation is irrelevant.  The fact that a school district can accommodate a transportation request under existing arrangements or with little cost or inconvenience is no basis upon which to provide transportation for which a child is not otherwise eligible (Appeal of a Student Suspected of Having a Disability, 38 Ed Dept Rep 507, Decision No. 14,081; Appeal of Franzenburg, 33 id. 284, Decision No. 13,049).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE