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Decision No. 16,394

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Appeal of JESSICA MILLIMAN-ESTUS, on behalf of her children JARRETT and ESTELLA, from action of the Board of Education of the Pine Valley Central School District regarding transportation.

Decision No. 16,394

(August 21, 2012)

Bly, Sheffield, Bargar & Pillittieri, attorneys for petitioner, Ashley E. Milliman, Esq., of counsel

Lundberg Law Offices, attorneys for respondent, Dana A. Lundberg and Myra V. Blasius, Esqs., of counsel

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

In March 2011, petitioner requested transportation for her children to the St. Joseph School, a nonpublic school in Gowanda, New York (“the school”), for the 2011-2012 school year.  This transportation request was approved by respondent.  Petitioner subsequently notified respondent of an alternative pick up/drop off point for child care purposes.  By letter dated November 18, 2011, petitioner was informed by respondent that her request for transportation between the school and the child care location was denied.  This appeal ensued.  Petitioner’s request for interim relief was deemed moot because respondent indicated that it would provide transportation to the child care location pending a final determination in this appeal.

Petitioner claims, among other things, that her children are in like circumstances to students attending district schools seeking transportation to child care providers.  Petitioner seeks an order requiring respondent to provide transportation for her children from the school to her child care provider.

Respondent asserts, among other things, that it will provide transportation to secondary locations for child   care purposes only if said locations do not cause an expansion of existing bus routes.  Respondent further asserts that its policy applies to all students residing in the district and that it does not treat nonpublic school students differently.  

I must first address certain procedural matters.  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.

Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  Both parties sought permission to submit additional materials for consideration and neither objected to the same.  Accordingly, I have considered the additional materials.   

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The 2011-2012 school year has ended and, therefore, the issue of petitioner’s request for transportation for that school year is moot.

Even if the appeal were not dismissed as moot, it would also be dismissed on the merits.  Education Law §3635(1)(e) authorizes boards of education, in their discretion, to offer transportation to and from “before-and/or-after-school child care locations” under certain circumstances.  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 (emphasis added).”  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 (Appeal of Wells, 49 Ed Dept Rep 443, Decision No. 16,076). 

I note that, according to records on file with the Department, of which I take judicial notice, the school is located outside respondent’s district.  Accordingly, petitioner’s children do not qualify for transportation to and from their child care provider under Education Law §3635(1)(e). 

Furthermore, respondent’s transportation of petitioner’s children between their child care provider and the school 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).

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

THE APPEAL IS DISMISSED.

END OF FILE.