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Decision No. 15,865

Appeal of SYDNEY HUGHES, on behalf of his daughter BAHYNAH, from action of the Board of Education of the Bellmore-Merrick Central High School District regarding transportation.

Decision No. 15,865

(January 30, 2009)

Ingerman Smith, L.L.P., attorneys for respondent, Susan E. Fine, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bellmore-Merrick Central High School District (“respondent”) denying his daughter, Bahynah, transportation to a nonpublic school for the 2008-2009 school year.  The appeal must be dismissed. 

On March 10, 2008, respondent’s business office received an application from petitioner for Bahynah’s transportation to St. Mary’s High School (“St. Mary’s”), a nonpublic school, for the 2008-2009 school year.  By letter dated June 23, 2008, respondent’s assistant superintendent for business denied petitioner’s request.  On August 12, 2008, respondent affirmed that decision.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 17, 2008. 

Petitioner maintains that Bahynah is a resident of respondent’s district and is entitled to receive transportation to St. Mary’s.

Respondent alleges that the petition is defective because it fails to contain a clear and concise statement of petitioner’s claim.  Respondent also claims that the appeal is untimely, that service was improper and that the appeal is without merit. 

The appeal must be dismissed for improper service.  Commissioner’s regulation §275.8(a) requires that a petition be served by someone who is over 18 and not a party to the appeal.  Since the record indicates that petitioner himself served respondent, and service by a party is improper, the appeal must be dismissed.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  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 policy after 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).

There is no dispute that petitioner and his daughter are district residents. According to respondent, the statutory 15-mile limit has not been extended and no resident student (including Bahynah) lives within 15 miles of St. Mary’s.  Petitioner does not dispute these facts.

Since transportation was provided to St. Mary’s during the 2007-2008 school year, respondent could provide transportation to Bahynah pursuant to Education Law §3635(1)(b)(ii).  However, this is within respondent’s discretion and it has decided not to do so “on the basis of financial, safety and security concerns.”  Thus, Bahynah is not entitled to transportation under §3635(1)(b)(ii).

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

THE APPEAL IS DISMISSED.

END OF FILE