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Decision No. 16,245

Appeal of ROBERT A. RUESCHER, on behalf of his daughter REBECCA, from action of the Board of Education of the Malverne Union Free School District regarding transportation.

Decision No. 16,245

(June 8, 2011)

Frazer & Feldman, LLP, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel

KING, Jr., Acting Commissioner.--Petitioner appeals the refusal of the Board of Education of the Malverne Union Free School District (“respondent”) to transport his daughter, Rebecca, from her residence to a nonpublic school.  The appeal must be dismissed.

Rebecca attends secondary school at the Sacred Heart Academy (“academy”), a nonpublic school in respondent’s district.  Pursuant to its transportation policy, respondent provides transportation to pupils in grades 9-12 who live more than three miles from the school they attend and up to a distance of 15 miles.

By letter dated April 21, 2010, respondent denied petitioner’s request for transportation because petitioner resided less than three miles from the academy.  By letter dated May 7, 2010, petitioner appealed this determination, and by letter dated September 1, 2010, respondent denied petitioner’s appeal.  This appeal ensued.

Petitioner admits that he resides only 2.7 miles from the academy but contends that respondent’s transportation policy is not consistently applied and that certain students residing less than three miles from the academy receive transportation.  Petitioner maintains that respondent’s practice violates Education Law §3635(1) because it does not apply its policy equally to all children in like circumstances.  Petitioner contends that there is room on the bus and that respondent previously transported his children to the academy.  Finally, petitioner contends that it is dangerous for his daughter to walk to school.

Respondent maintains that petitioner admittedly lives less than three miles from the academy and, therefore, the denial of petitioner’s transportation request is in all respects proper.  Respondent maintains petitioner’s daughter is not entitled to transportation due to danger or hardship or because it provided transportation to petitioner’s children in the past.

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 S.T., 48 Ed Dept Rep 389, Decision No. 15,894; Appeal of Hughes, 48 id. 299, Decision No. 15,865; Appeal of Keller, 47 id. 224, Decision No. 15,677).  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, district voters have not approved transportation for a distance less than three miles.

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of A.P., 48 id. 380, Decision No. 15,891).

Petitioner admits that he resides 2.7 miles from the academy.  However, he argues that respondent provided transportation to the academy for his children in the past.  Petitioner also argues that Rebecca should be provided with transportation because there are three other students residing less than three miles from the academy who receive transportation.  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).[1]

Petitioner also challenges respondent’s denial of transportation because the bus has empty seats available.  Eligibility for transportation under Education Law §3635 is determined on the basis of distance between a child’s home and the school he or she attends (Education Law §3635(1); Matter of Studley v. Allen, 24 AD2d 678, 261 NYS2d 138).  Although there may be seats on a bus available, boards of education lack the authority to transport students who are ineligible for transportation under the mileage limitations, notwithstanding the fact that there may be room on the bus for them (Appeal of Bodine, 31 Ed Dept Rep 173, Decision No. 12,609).

Petitioner also contends that respondent should provide transportation because Rebecca must cross dangerous intersections in order to get to school.  The Education Law does not base eligibility for transportation in individual cases on potential hazard.  There is no obligation imposed upon school districts “to consider the relative hazards in the paths of different children” (Pratt v. Robinson, 39 NY2d 554, 559, 384 NYS2d 749, 349 NY2d 849).  As stated in the Matter of Studley v. Allen, 24 AD2d 678, 261 NYS2d 138, “the ... yardstick is distance which is, objectively, readily ascertainable and not hazard which involves a myriad of factors.”  Education law §3635-b does permit school districts to establish child safety zones to provide transportation based on hazard to all students similarly situated, but there is no evidence in this record that respondent has established a child safety zone applicable to petitioner’s situation.  Moreover, for those students who are not eligible for transportation, it is the responsibility of their parents to provide for their safe arrival at school (Appeal of Flemming, 43 Ed Dept Rep 391, Decision No. 15,028).  Accordingly, petitioner is not entitled to transportation because of the allegedly hazardous route that his daughter is required to travel.

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  Petitioner has failed to meet his burden.  Therefore, I am unable to conclude that respondent’s determination is arbitrary, capricious or contrary to law.

THE APPEAL IS DISMISSED.

END OF FILE.

[1] The record indicates that respondent is providing transportation to three students who live, according to Mapquest, respectively 2.99, 2.96 and 2.90 miles from the academy.  Respondent asserts that Mapquest has a fluctuation of .1 miles.  This apparently, in respondent’s view, renders those students within the distance requirement for transportation services.  To ensure that respondent provides transportation services only to students legally entitled to them, respondent is cautioned against relying on margin of error calculations in electronic programs and encouraged to physically measure distance in such close circumstances.