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Decision No. 15,951

Appeal of JOHN McDERMOTT, on behalf of his son CHRISTOPHER, from action of the Board of Education of the Scarsdale Union Free School District regarding transportation.

Decision No. 15,951

(July 23, 2009)

Keane & Beane, P.C., attorneys for respondent, Lawrence Praga, Esq., of counsel

HUXLEY, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Scarsdale Union Free School District (“respondent”) to transport his son, Christopher, to a nonpublic school.  The appeal must be dismissed.

Prior to the start of the 2008-2009 school year, petitioner requested transportation for Christopher to Iona Preparatory School (“Iona”), a nonpublic school located in New Rochelle, New York.  Respondent had provided Christopher with transportation to Iona in previous school years.  In April 2008, respondent’s transportation director denied petitioner’s transportation request for the 2008-2009 school year on the basis that petitioner lived less than 1.5 miles from the school.  Petitioner appealed this decision to respondent which, by letter dated July 24, 2008, upheld the denial.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 22, 2008.

Petitioner claims that respondent’s denial of transportation for the 2008-2009 school year was arbitrary and capricious.  Specifically, petitioner claims that respondent violated its transportation policy by determining his son’s eligibility for transportation by measuring the distance from his house to a flagpole at Iona and not to the school’s “main entrance” as its policy requires.  Petitioner, therefore, seeks a determination that Christopher is entitled to the requested transportation.

Respondent maintains that its determination was reasonable, that it used the flagpole in the past to determine transportation eligibility and that its actions do not violate its transportation policy.  Respondent also asserts that it provided transportation to Christopher in prior years in error and claims that petitioner’s appeal is moot.

Initially, I must address petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Therefore, while I have reviewed petitioner’s reply submissions, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Petitioner seeks transportation for the 2008-2009 school year.  Since the 2008-2009 school year has ended, petitioner’s transportation request for that year is moot.

Even if the appeal were not moot, I would dismiss it 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).  Voters in respondent’s district approved transportation for a distance of 1.5 miles.

It appears from the record that the distance between petitioner’s residence and Iona’s flagpole is less than 1.5 miles, while the distance between petitioner’s residence and the entrance he considers to be Iona’s “main entrance” is greater than 1.5 miles.  The issue, therefore, is whether respondent’s use of Iona’s flagpole as a measuring point is improper.

A school district has broad discretion in selecting measurement points on school property for purposes of determining eligibility for transportation (Appeal of Flemming, 43 Ed Dept Rep 391, Decision No. 15,028; Appeal of Porzio, 42 id. 166, Decision No. 14,808).  It may measure transportation distances from any part of the school or a resident’s property, so long as it does so fairly and consistently (Appeal of Flemming, 43 Ed Dept Rep 391, Decision No. 15,028; Appeal of Porzio, 42 id. 166, Decision No. 14,808; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  Commissioner's decisions have upheld measurements using a variety of reference points, such as a corner of the school property (Appeal of Canossa, et al., 37 Ed Dept Rep 456, Decision No. 13,904), a side entrance of the school (Appeal of Mermelstein, et al., 30 Ed Dept Rep 119, Decision No. 12,406), the point at which the child first comes in contact with the grounds of the school he or she attends (Appeal of Pavony, et al., 27 Ed Dept Rep 295, Decision No. 11,951), a point at the entrance gate to the school grounds (Matter of Feldblum, 4 Ed Dept Rep 156, Decision No. 7499) and the mid-point of the school (Matters of Silbert, et al. and Fitzpatrick, 1 Ed Dept Rep 283, Decision No. 6607).  Furthermore, there is nothing improper about a district using multiple entrances as a means to measure distance, provided a uniform policy is adopted (Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636; Matters of Silbert, et al. and Fitzpatrick, 1 id. 283, Decision No. 6607).  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).

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).  On the record before me, I find that petitioner has failed to meet this burden.

Respondent’s transportation policy requires it to measure from a student’s residence to the “main entrance” of a nonpublic school for purposes of determining transportation eligibility.  Petitioner submits a schematic of Iona showing an entrance labeled as its “Main Entrance,” as well as a letter from Iona’s Director of Admissions indicating that the school’s flagpole is located “about 120 feet” from this entrance.  Respondent acknowledges that its transportation policy requires it to measure to a nonpublic school’s “main entrance” for purposes of determining transportation eligibility, but contends that it has discretion in determining what constitutes the “main entrance.”  Respondent asserts that it determined that Iona’s flagpole, which is located “just outside” of a lobby and the school’s “main office,” was its “main entrance,” and that it has always used this flagpole to determine transportation eligibility for Iona students.

Although the precise location of Iona’s flagpole cannot be determined from the record, respondent asserts (and petitioner does not dispute) that it is located “just outside” the lobby/“main office” area of the school.  According to the schematic submitted by petitioner, this lobby/main office area appears to be located near an entrance that provides access to various administrative offices, including Iona’s “main office.”  I am unable to determine from the record before me that it is unreasonable to treat this entrance (or the area around it) as the school’s “main entrance.”  I am, therefore, unable to determine that respondent’s use of Iona’s flagpole as a measurement point for transportation purposes is improper.

Further, the fact that a district transported a student in prior years does not estop the district from declining to provide such transportation (Appeal of Rohde, 45 Ed Dept Rep 255, Decision No. 15,313; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073; Appeal of Robert G., 32 id. 60, Decision No. 12,758).  Moreover, a district has no authority to make an exception to the eligibility requirement of Education Law §3635 merely because it erroneously provided transportation to a student in the past (Appeal of a Student with a Disability, 43 Ed Dept Rep 524, Decision No. 15,073; Appeal of Robert G., 32 id. 60, Decision No. 12,758).  If a board of education is providing transportation for a pupil who is not legally entitled to it, the solution is to discontinue such transportation (Appeal of a Student with a Disability, 43 Ed Dept Rep 524, Decision No. 15,073; Appeal of Turner, 40 id. 156, Decision No. 14,447; Appeal of Whitaker, 33 id. 59, Decision No. 12,974).

THE APPEAL IS DISMISSED.

END OF FILE