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Decision No. 16,345

Appeal of EVELIN KADUKARA, on behalf of her son JONATHAN, from action of the Board of Education of the Valley Stream 13 Union Free School District regarding transportation.

Decision No. 16,345

(March 30, 2012)

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

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Valley Stream 13 Union Free School District (“respondent”) that her son, Jonathan, is not entitled to transportation.   The appeal must be dismissed. 

In the 2010-2011 school year, Jonathan attended kindergarten at respondent’s James A. Dever Elementary School (“Dever” or “the school”).  According to respondent’s transportation policy, all children in kindergarten through third grade who live one-half mile or more from the school that they attend are entitled to transportation. 

On September 8, 2010, district staff measured the distance between petitioner’s home and Dever with a “Johnson Measuring Wheel” (“measuring wheel”) and determined that petitioner lived .456 miles from the school and that Jonathan was therefore ineligible for transportation.  In response to petitioner’s request, a second measurement was taken with the measuring wheel – and observed by petitioner’s husband - which indicated that petitioner lived .45 miles from the school.  As a result, Jonathan was not provided transportation.  On September 28, 2010, petitioner appealed to respondent.  By letter dated October 1, 2010, respondent denied petitioner’s appeal, and this appeal ensued.  Petitioner’s request for interim relief was denied on November 8, 2010.  

Petitioner challenges respondent’s denial of her transportation request on several grounds.  She contends that Jonathan’s older brother previously received transportation to Dever when he was in kindergarten through third grade, and that she was not notified until the second week of school in the 2010-2011 school year that Jonathan was not entitled to such transportation.  In addition, petitioner asserts that Jonathan lives more than one-half mile away from Dever, that Jonathan’s walking route to Dever is “extremely dangerous,” and that driving Jonathan each day would constitute an “extreme hardship.”  Petitioner also contends that respondent could provide transportation without any hardship to respondent or change in bus scheduling.  Petitioner requests that I find that Jonathan is entitled to bus transportation.    

Respondent admits that it previously transported petitioner’s older son to Dever but contends that, according to the measurements taken in September 2010, Jonathan lives less than one-half mile from Dever and therefore is ineligible for transportation under its policy.  Respondent maintains that it properly denied petitioner’s transportation request, and that petitioner has failed to establish any basis for the relief sought.

I must first address two procedural issues, beginning with 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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, 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.

In addition, by letter dated December 16, 2010, respondent submitted a sur-reply affirmation for consideration.  The Commissioner, in his discretion, may permit the service and filing of additional affidavits, exhibits and other supporting papers (see 8 NYCRR §276.5).  A sur-reply, however, may not improperly buttress allegations that should have been asserted in an answer (seeAppeal of Butler and Dunham, 50 Ed Dept Rep, Decision No. 16,103; Appeal of Malone and Trombley, 39 id. 135, Decision No. 14,194). 

Here, respondent’s sur-reply affirmation objects and/or responds to claims that respondent asserts are improperly raised in petitioner’s reply.  As noted above, I have not considered any portion of petitioner’s reply that is not responsive to new material or affirmative defenses in the answer.  Moreover, respondent’s sur-reply affirmation reiterates or rephrases a number of respondent’s assertions previously set forth in its answer.  Accordingly, I decline to accept or consider respondent’s sur-reply affirmation.

Turning to the merits, a school district must provide transportation for all children attending grades kindergarten through eight who live between 2 and 15 miles from school and for all children attending grades 9 through 12 who live between 3 and 15 miles from school, the distances in each case being measured by the nearest available route from home to school (Education Law §3635[1][a]; Appeal of Schwab, 47 Ed Dept Rep 73, Decision No. 15,630; Appeal of Bittlingmaier, 45 id. 213, Decision No. 15,305).  Transportation for a lesser or greater distance than that set forth in statute may only be provided upon approval by the voters of the district (Education Law §3635[1][a]; Appeal of Bittlingmaier, 45 Ed Dept Rep 213, Decision No. 15,305; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073).  If such transportation is provided, it must be offered equally to all students in like circumstances residing in the district (Education Law §3635[1][a]; Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636).  As noted above, respondent has adopted a policy which, in relevant part, provides transportation to students in kindergarten through third grade who live one-half mile or more away from the school that they attend.  

A board of education is neither required to expend an unreasonable amount of time, effort or money in measuring distances for the purpose of determining eligibility for transportation, nor make such measurements with the accuracy of a professional survey (Appeal of Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Schwab, 47 id. 73, Decision No. 15,630; Appeal of Flemming, 43 id. 391, Decision No. 15,028).  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). 

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). 

Although not clearly articulated in the petition, petitioner appears to suggest that respondent should be estopped from denying transportation to Jonathan because it previously transported her older son to and from Dever.  However, except in limited circumstances not applicable here, estoppel does not apply against a government subdivision (seeAppeal of M.L., 50 Ed Dept Rep, Decision No. 16,213; Appeal of Araneo, 45 id. 325, Decision No. 15,336).  Accordingly, I cannot find that this claim establishes an entitlement to transportation for Jonathan (seee.g., Appeal of M.L., 50 Ed Dept Rep, Decision No. 16,213).   

Petitioner also contends that she lives .5 miles from the school, making Jonathan eligible for transportation.  As proof, she submits an internet-based map.  However, it is undisputed that respondent conducted two measurements from petitioner’s home to Dever with a measuring wheel and that both measurements showed that petitioner lived less than one-half mile away from the school.[1] Moreover, and in response to petitioner’s reliance on an internet-based map, respondent submits a different internet-based map indicating that petitioner lives .46 miles from Dever.  Accordingly, petitioner has not established that respondent’s methodology for measuring distance is inaccurate or unreasonable.

Petitioner further contends that, when she drove her car from Dever to her home, the odometer indicated that she had traveled .6 miles, which is more than the one-half mile required for transportation eligibility.[2] However, it appears that petitioner began measuring the distance from Dever’s “main front entrance.”  In contrast, respondent measured the distance from petitioner’s home to an exterior door at the school which leads to its library (“library door”).  According to respondent’s transportation policy, measurements for purposes of determining transportation eligibility are required to be taken “from the point on the sidewalk at the property line of the student’s home nearest the school to the nearest entrance to the school building by the shortest route over public streets” (emphasis added). 

A school district has broad discretion in selecting measurement points on school property for purposes of determining eligibility for transportation (Appeal of Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Flemming, 43 id. 391, Decision No. 15,028).  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 Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Flemming, 43 id. 391, Decision No. 15,028; Appeal of Porzio, 42 id. 166, Decision No. 14,808).  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).

Here, petitioner appears to concede that the library door is the nearest door to the school from her home, but she contends that respondent’s use of the library door as an “entrance” for purposes of its policy is “illogical” because it “is not an entrance at all for the students” and is “never used to allow students to enter the building.”    However, the fact that students may not use the library door to enter the school does not, by itself, preclude respondent from utilizing this door as a measurement point for transportation purposes (seee.g., Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636; Appeal of Mermelstein, et. al., 30 id. 119, Decision No. 12,406).  Moreover, while petitioner refers to the library door as an “emergency exit,” there is nothing in the record from which to determine whether, or to what extent, the door’s use is restricted, or whether respondent’s use of the door as an “entrance” for purposes of its transportation policy is inconsistent with its general practice.   Accordingly, I am unable to conclude that respondent’s use of the library door as a measurement point for transportation purposes is unreasonable or inappropriate.

Petitioner also asserts that Jonathan should receive transportation because the route that he must walk is “extremely dangerous.”  It is well settled that Education Law §3635(1) does not base eligibility for transportation in individual cases on potential hazard (seee.g., Pratt v. Robinson, 39 NY2d 554, 559; Appeal of Ruescher, 50 Ed Dept Rep, Decision No. 16,245).  Rather, “the ... yardstick is distance which is, objectively, readily ascertainable and not hazard which involves a myriad of factors” (Matter of Studley v. Allen, 24 AD2d 678).  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). 

Petitioner further contends that the denial of transportation will cause hardship for her and her husband.  Although I am sympathetic to petitioner’s concerns, hardship or inconvenience do not constitute a legal basis for entitlement to transportation (seee.g., Appeal of Wells, 49 Ed Dept Rep 443, Decision No. 16,076; Appeal of Goldstein, 40 id. 159, Decision No. 14,448). 

Finally, petitioner asserts that respondent could provide transportation to Jonathan without any hardship or change in bus scheduling.  However, as noted above, eligibility for transportation under Education Law §3635(1) is determined on the basis of the distance between a child’s home and the school that he or she attends (Education Law §3635[1]; Matter of Studley v. Allen, 24 AD2d 678).  Moreover, boards of education lack the authority to transport students who are ineligible for transportation (seee.g., Appeal of Ruescher, 50 Ed Dept Rep, Decision No. 16,245; Appeal of Hinkley, 37 id. 431, Decision No. 13,897).   Accordingly, on this record, petitioner has not met her burden of proof and I am unable to conclude that respondent’s determination was arbitrary, capricious or unreasonable.     

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

THE APPEAL IS DISMISSED.

END OF FILE.

[1] While petitioner points out that the Commissioner has allowed the use of internet-based maps in the past to determine distance, she offers no reason why, in this case, her internet-based map should be given greater consideration, or is more accurate, than respondent’s two measurements with the measuring wheel.

[2] The accuracy of petitioner’s odometer reading is not raised as an issue in this appeal and I make no findings with respect to it.