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Decision No. 15,949

Appeal of CECELIA SOUTHARD, on behalf of her daughter MARIA, from action of the Board of Education of the Haverstraw-Stony Point Central School District regarding transportation.

Decision No. 15,949

(July 16, 2009)

O’Connell & Riley, Esqs., attorneys for respondent, James K. Riley, Esq., of counsel

HUXLEY, Interim Commissioner.--Petitioner appeals the determination of the Haverstraw-Stony Point Central School District (“respondent”) that her daughter, Maria, is not eligible for nonpublic school transportation.  The appeal must be dismissed.

In March 2008, petitioner requested transportation for Maria to and from the Immaculate Heart Academy (“IHA”), an all-girls school in Washington Township, New Jersey, for the 2008-2009 school year.  On July 1, 2008, petitioner and several other families appeared before respondent.  Respondent denied petitioner’s request on the basis that she lives more than 15 miles away from IHA.  This appeal ensued.

Petitioner contends that respondent’s mileage calculations are erroneous and claims that she and Maria live less than 15 miles from IHA.  In addition, petitioner accuses respondent of discriminating against female students by providing transportation for boys who live more than 15 miles from certain all-boys schools, but not doing the same for girls who are “similarly situated.”  Petitioner seeks a determination that respondent’s mileage calculations lack credibility and that its actions create a “disparate impact and discriminatory effect on female students.”

Respondent denies petitioner’s claims and asserts that it provides transportation to nonpublic schools “based solely and exclusively on the computation of mileage.”

Before reaching the merits I must address respondent’s sur-reply.  The Commissioner, in his discretion, may permit the service and filing of additional affidavits, exhibits and other supporting papers upon good cause shown (8 NYCRR §275.3[b]).  Here, respondent requests that I consider its sur-reply to “deal with and resolve” issues raised in petitioner’s reply.  Since I find that respondent’s sur-reply is responsive to new material properly contained in petitioner’s reply, I have accepted and considered it.

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).  Here, the record reflects that respondent and its voters have not approved transportation to nonpublic schools for distances in excess of 15 miles.

Petitioner contends that she and Maria reside less than 15 miles from IHA.  However, she submits no evidence to support her claim.  Instead, petitioner merely attempts to discredit respondent’s calculations which, though slightly varied, all indicate that petitioner and Maria reside more than 15 miles from IHA.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  Despite the various discrepancies highlighted by petitioner, I am unable to find that she has met her burden of showing that she and Maria live less than 15 miles from IHA.

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).

Respondent claims, and petitioner does not deny, that neither IHA nor Academy of Holy Angels High School (“AHA”), another all-girls school cited by petitioner, enrolls any resident students that live within 15 miles of these schools, nor has it provided transportation to either of these schools in the last three years.  Therefore, transportation to these schools is not authorized.

While respondent acknowledges that it provides transportation to some male students who reside more than 15 miles from the schools that they attend, it maintains that these schools enroll at least one resident student who resides within 15 miles, and that in each case a central pick-up point is used.  This is permissible pursuant to Education Law §3635(1)(b)(i).

To the extent that petitioner claims that other “similarly situated” male students are inappropriately receiving transportation, I find that this does not provide a basis for granting the requested transportation.  Even if such a claim were true, the solution would be to discontinue the inappropriate transportation to the male students (seee.g.Appeal of Keller, 47 Ed Dept Rep 224, Decision No. 15,677; Appeal of Schwab, 47 id. 73, Decision No. 15,630; Appeal of Kluge, 31 id. 107, Decision No. 12,586).

Finally, petitioner appears to challenge the constitutionality of the Education Law by arguing that it creates a “disparate impact and discriminatory effect” on female students.  An appeal pursuant to Education Law §310 is not the proper forum for deciding the constitutionality of a statute (seeAppeal of Carlson, et al., 37 Ed Dept Rep 351, Decision No. 13,877).

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

THE APPEAL IS DISMISSED.

END OF FILE