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Decision No. 16,076

Appeal of TANIA WELLS, on behalf of her children ROSS and ARIKA, from action of the Board of Education of the North Rose-Wolcott Central School District regarding transportation.

Decision No. 16,076

(June 22, 2010)

Wayne A. Vander Byl, Esq., attorney for respondent

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the North Rose-Wolcott Central School District (“respondent”) denying her request for transportation between a child care location and a nonpublic school.  The appeal must be dismissed.

On March 19, 2009, petitioner requested transportation for her children, Ross and Arika, to the Maranatha Christian School (“Maranatha Christian”), a nonpublic school that her children attend.  In previous school years, respondent had provided petitioner’s children with transportation between Maranatha Christian and a child care provider located within respondent’s district.  In the 2009-2010 school year, however, respondent advised petitioner that this transportation would not be provided.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 10, 2009.

Petitioner contends that she is being discriminated against, and argues that her children qualify for roundtrip transportation between their child care provider and Maranatha Christian pursuant to Education Law §3635(1)(e).  Specifically, petitioner argues that respondent provided this transportation in previous years and that if her children attended respondent’s public schools they would be given such transportation.  Petitioner requests that I order respondent to provide her children with roundtrip transportation between their child care provider and Maranatha Christian.

Respondent asserts that it has a policy of providing children in grades K-8 with transportation between child care locations and the schools that they attend, and it admits to providing petitioner’s children with such transportation in the past.  Respondent, however, maintains that it provided this transportation to petitioner’s children based on the mistaken belief that it was authorized or required to do so, but that since Maranatha Christian is located outside of its district, petitioner’s children do not qualify for transportation to and from their child care location.

Education Law §3635(1)(e) authorizes boards of education to offer transportation to and from “before-and/or-after-school child care locations.”  For purposes of Education Law §3635(1)(e), a “before-and/or-after-school child care location” is defined as “a place, other than the child’s home, where care for less than twenty-four hours a day is provided on a regular basis for a child who attends school within the school district, provided that such place is situated within the school district.”  Accordingly, Education Law §3635(1)(e) authorizes school districts to provide transportation to child care locations only when both the school that a child attends and his/her child care provider are located within the district (seee.g.Appeal of Krevoy, 48 Ed Dept Rep 103, Decision No. 15,804; Appeal of a Student Suspected of Having a Disability, 38 id. 507, Decision No, 14,081).

It is undisputed that, here, the school that petitioner’s children attend – Maranatha Christian – is located outside of respondent’s district.  Accordingly, petitioner’s children do not qualify under Education Law §3635(1)(e) for transportation to and from their child care provider.

Furthermore, respondent’s transportation of petitioner’s children between their child care provider and Maranatha Christian in the past does not entitle them to such transportation now.  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).

Finally, petitioner contends that the lack of transportation to and from her children’s child care provider will create a hardship on her family.  While I am sympathetic to petitioner’s concerns, hardship or inconvenience alone is not a legal basis for granting transportation (seee.g.  Appeal of a Student Suspected of Having a Disability, 38 Ed Dept Rep 507, Decision No, 14,081; Appeal of Lawless, 37 id. 324, Decision No. 13,870;  Appeal of Kluge, 31 id. 107, Decision No. 12,586).

THE APPEAL IS DISMISSED.

END OF FILE.