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Decision No. 15,891

Appeal of A.P., on behalf of her son E.P., from action of the Board of Education of the City School District of the City of Rensselaer regarding transportation.

Decision No. 15,891

(March 13, 2009)

Girvin & Ferlazzo, P.C., attorneys for respondent, Tara L.    Moffett, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Rensselaer (“respondent” or “board”) denying transportation for her son to and from a nonpublic school by private carrier.  The appeal must be dismissed.

In March 2008, petitioner transferred her son from respondent’s school district to a nonpublic school due to alleged bullying.  In August 2008, petitioner requested transportation for her son by private carrier to the nonpublic school, which is located outside respondent’s district.  By letter dated August 15, 2008, respondent’s superintendent denied petitioner’s request but advised that transportation by public bus carrier could be provided at respondent’s expense upon petitioner’s request. The superintendent also advised petitioner of her right to appeal the decision to respondent.  Petitioner did not do so.  This appeal ensued.

Petitioner contends that her son is a district resident and that, given the reasons for his transfer to the nonpublic school, he is entitled to private transportation.  Petitioner also contends that public transportation is inappropriate given her son’s age and grade. Petitioner seeks private transportation for her son directly to and from the nonpublic school.

Respondent contends that petitioner failed to exhaust her administrative remedies by not appealing the superintendent’s decision to respondent and that petitioner has failed to prove that she is entitled to the relief requested.

Respondent argues that its Policy No. 1400 requires an appeal to the board prior to an appeal to the Commissioner.  This policy, however, merely establishes a public complaint process and does not require an appeal to the board. Respondent has not articulated any requirement in statute, regulation or board policy which would mandate petitioner to appeal to the board before exercising her right to initiate an appeal pursuant to Education Law §310 (seeAppeal of Deleewerk, 37 Ed Dept Rep 453, Decision No. 13,903).  Consequently, there is no basis to dismiss this appeal for failure to exhaust administrative remedies.

As to the merits, a city school district may, but is not required to, provide transportation to students (Education Law §3635[1][c]).  Where such district elects to provide transportation, it must do so equally to all students in like circumstances (Education Law §3635[1][c]; SandsPoint Academy, et al. v. Bd. of Educ., 63 Misc 2d 276; Appeal of Zeller, 45 Ed Dept Rep 337, Decision No. 15,340).  The Commissioner of Education has held that students in different grades are not in “like circumstances” and that city school districts may establish transportation policies that make distinctions by grade level (Appeal of Cassin, et al., 32 Ed Dept Rep 373, Decision No. 12,859), which respondent has not done in this case.

Pursuant to respondent’s transportation policy, it provides transportation via public bus carrier for any student attending an out-of-district school (public or nonpublic) who resides more than one and one-half miles (1.5) from the school the student attends.  In accordance with this policy, respondent advised petitioner that upon her request, it would provide a public carrier bus pass for her son’s transportation to and from the nonpublic school.  Use of existing public transportation instead of duplicating routes by school buses is one way of reducing the costs of pupil transportation and is neither illegal nor unreasonable (Appeal of Clancy, 37 Ed Dept Rep 280, Decision No. 13,859; Appeal of Lavin, 32 id. 249, Decision No. 12,821; Appeal of Kelley, 18 id. 507, Decision No. 9,943). 

Petitioner contends that the particular means of transportation is inappropriate given her son’s age and grade.  The record indicates that petitioner’s son is currently in the third grade.  While I appreciate petitioner’s concerns for her son’s safety, a board of education has broad discretion to determine how transportation is to be provided (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of McCarthy and Bacher, 42 id. 329, Decision No. 14,872).  In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of McCarthy and Bacher, 42 id. 329, Decision No. 14,872).  Moreover, a board of education has both the responsibility and the authority to decide difficult questions in balancing the overall efficiency and economy of a transportation system against the convenience of individual students (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of McCarthy and Bacher, 42 id. 329, Decision No. 14,872).

Unfortunately, danger may exist regardless of the distance or location involved, and the only solution would be to provide door-to-door transportation for all students. (Appeal of Lavin, 32 Ed Dept Rep 249, Decision No. 12,821.  However, the public policy of this State does not require school districts to provide door-to-door transportation.  There is no obligation for school districts to determine in individual cases eligibility for certain methods of transportation on the basis of potential hazards.  The Commissioner has held that it is not arbitrary and capricious for a district to provide young children with transportation via public carrier. (Appeal of Lavin, 32 Ed Dept Rep 249, Decision No. 12,821).

Therefore, a board of education may provide passes for transportation on public transit facilities where it can be provided in such manner (Appeal of Clancy, 37 Ed Dept Rep 280, Decision No. 13,859; Appeal of Lavin, 32 id. 249, Decision No. 12,821; Appeal of Farrauto, 27 id. 149, Decision No. 11,901).                                      

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Morgan, 46 Ed Dept Rep 474, Decision No. 15,568; Appeal of Girsdansky, 46 id. 105, Decision No. 15,455).  Based on the foregoing, the record before me does not show that respondent abused its discretion in denying transportation by private carrier for petitioner’s son to the nonpublic school. 

THE APPEAL IS DISMISSED.

END OF FILE