Appeal of JOHN and REGINA KYLE, on behalf of their son JOSEPH, from action of the Board of Education of the Monroe-Woodbury Central School District regarding transportation.

Decision No. 16,626

(June 30, 2014)

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Allison E. Smith, Esq., of counsel

KING, JR., Commissioner.--Petitioners challenge the manner in which the Board of Education of the Monroe-Woodbury Central School District (“respondent”) provides transportation for their son, Joseph, to the nonpublic high school he attends. The appeal must be dismissed.

On March 4, 2013, petitioner Regina Kyle requested transportation for Joseph to and from the John S. Burke Catholic High School (“Burke”) for the 2013-2014 school year, during which he would be a freshman. The record indicates that petitioners live within 15 miles of Burke. By letter dated August 20, 2013, respondent notified parents, including petitioners, of changes in bus routes affecting their children for the upcoming school year. In particular, the letter stated that all Burke students would be picked up on Monroe-Woodbury school buses in the morning and transported to Monroe-Woodbury High School (“MWHS”), where they would then transfer to a shuttle bus which would proceed to Burke. The letter gave parents the option of dropping off their child directly at the Burke shuttle bus at MWHS. Respondent notes that, prior to the 2013-2014 school year, petitioners’ son was picked up at his district bus stop1 and transported directly to Burke. The August 20, 2013 letter also indicated that in the afternoon, one bus would pick up all Burke students. That bus would meet two connecting buses at the Monroe Park and Ride and all three buses would then transport students home.

By letter dated September 4, 2013, respondent again wrote to petitioners and other parents of Burke students stating that “[they] have been able to make some adjustments to assist with the transfer process to the John S. Burke Shuttle Bus.” Respondent contends that this letter was sent as a result of parental concerns expressed about Burke students riding the bus with Monroe-Woodbury Central School District students.2 The September 4, 2013 letter advised that the shuttle bus would make a stop at Sacred Heart School in the morning before proceeding to MWHS, where students arriving by Monroe-Woodbury buses or being dropped off by parents would transfer to the shuttle bus. The letter stated that the shuttle bus would leave MWHS and make an additional stop at Central Valley Elementary School before continuing on to Burke. In the afternoon, according to the letter, the shuttle bus would depart from Burke and travel to North Main Elementary School where it would meet with two smaller school vans. Students would then transfer to their respective school vans for the ride home or parents would have the option of picking them up from this location, as noted in the September 4, 2013 letter. This appeal ensued. Petitioners’ request for interim relief was denied on November 8, 2013.

Petitioners allege that the district’s use of MWHS as a “centralized pick-up point” for Joseph is in opposition to the intent of Education Law §3635. Petitioners also contend that respondent’s “alternative transportation scheme” for Joseph involving Sacred Heart School is unreasonable, dangerous and inconvenient. Petitioners request that the Commissioner require respondent to provide Joseph with direct home-to-school bus service in accordance with Education Law §3635. Petitioners also seek reimbursement from respondent of the $20 filing fee for commencing this appeal as well as the cost of transporting Joseph to Central Valley Elementary School each school day.

Respondent contends that the petition should be dismissed as untimely. Respondent also maintains that the district’s transportation policies and procedures are in compliance with Education Law and Commissioner’s regulations. Finally, respondent contends that petitioners are not entitled to reimbursement for filing fees or the cost of transporting their child to Central Valley Elementary School.

Before addressing the merits, I must address a procedural issue. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694). When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).

Respondent argues that it informed petitioners of the transportation changes in writing on August 20, 2013 and, as the petition was served on the district on October 8, 2013, more than 30 days later, it is time-barred and should be dismissed. Petitioners contend that respondent did not provide transportation to Joseph until September 9, 2013, and as “[a]n appeal to the [C]ommissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of,” the appeal is not time-barred.

Here, petitioners seek review not only of the changes to Joseph’s bus route contained in respondent’s August 20, 2013 letter but also of the adjustments made to the route as detailed in respondent’s September 4, 2013 letter. Since the record does not indicate when petitioners actually received respondent’s September 4, 2013 letter, affording five days for mailing, excluding Sundays and holidays, the date of receipt would be September 10, 2013. The petition was commenced on October 8, 2013, within 30 days of September 10, 2013, and I therefore decline to dismiss the appeal as untimely under these circumstances.

However, the appeal must be dismissed 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 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).

Additionally, transportation may also be furnished for certain other pupils attending a nonpublic school in accordance with Education Law §3635(1)(b)(i). A school district providing transportation to a nonpublic school for pupils living within the specified distances from such school must designate one or more public schools as centralized pick-up points, and must provide transportation between such pick-up points and such nonpublic school for pupils residing too far from the nonpublic school to qualify for regular transportation between home and school. The statute does not require transportation from centralized pick-up points to any nonpublic school to which regular home-to-school transportation is not already being provided (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).

Education Law §3635(1)(b)(ii) further states that a board of education "may, at its discretion," provide transportation from a centralized pick-up point for pupils residing within the district to a nonpublic school located more than 15 miles from the home of any such pupil, provided that transportation has been provided to the nonpublic school in at least one of the immediately preceding three school years (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). When a school district exercises its discretion to provide transportation pursuant to Education Law §3635(1)(b)(ii), the statute requires that the distance from the centralized pick-up point to the nonpublic school must not be more than 15 miles (Appeal of Bittlingmaier, 45 Ed Dept Rep 213, Decision No. 15,305; Appeal of Turner, 40 id. 156, Decision No. 14,447; Appeal of Bank, et al., 40 id. 141, Decision No. 14,442).

A board of education may exercise its discretion when designating pick-up and drop-off points, provided that the board uses reasonable care in exercising such discretion (Appeal of Brizell, 48 Ed Dept Rep 128, Decision No. 15,814; Appeal of Petrella, 48 id. 45, Decision No. 15,789). In establishing a pick-up point, a board of education must balance considerations of pupil safety and convenience, routing efficiency and costs (Appeal of Brizell, 48 Ed Dept Rep 128, Decision No. 15,814; Appeal of Petrella, 48 id. 45, Decision No. 15,789). The law does not require a school district to provide transportation for the pupil directly to and from home (Education Law §3635[1][d]; Ossant v. Millard, 72 Misc 2d 384) and boards of education have discretion to require students to walk to pick-up points from which transportation will be provided (Appeal of Girsdansky, 46 Ed Dept Rep 105, Decision No. 15,455). Where a student’s home is on a dangerous road or at a remote location, the parents are not free from the obligation to assist the student in reaching the pick-up point. It is the responsibility of the parent, not the district, to see that the child safely reaches the pick-up point (Appeal of Brizell, 48 Ed Dept Rep 128, Decision No. 15,814; Appeal of Weinschenk, 47 id. 518, Decision No. 15,770).

Within the framework provided by Education Law §3635, a board of education has broad discretion to determine how transportation is to be provided (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814). In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814). Moreover, a board of education has both the responsibility and the authority to decide difficult questions in balancing the overall efficiency and economy of a transportation system against the convenience of individual students (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814). 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).

Petitioners contend that respondent “is attempting to utilize a ‘centralized pick-up point’ scheme for Joseph Kyle in violation of [Education Law §] 3635 and previous findings by the Commissioner” and that respondent “cannot simply choose to rename the busing scheme a Centralized Transfer Point and then claim compliance with the Transportation statute and previous findings by the Commissioner.” To support their position that Joseph is entitled to “direct home to school bus service,” petitioners rely on Appeal of Hurd (41 Ed Dept Rep 473, Decision No. 14,749 [2002] [“Hurd”]) and Appeal of Del Prete (40 Ed Dept Rep 148, Decision No. 14,444 [2000] [“Del Prete”]). Both Hurd and Del Prete involved the issue of nonpublic school students who lived more than two and less than 15 miles from their nonpublic school. In those cases, the school districts transported the students to a public and a non-public school, respectively, where they boarded a second bus that took them to their nonpublic schools. The Commissioner found that respondents improperly utilized centralized pick-up points. The cases also held that respondents must transport such students “directly” from their homes to their nonpublic school without the use of a centralized pick-up point if the distance between students’ homes and their non-public school falls between such distance limits.

Contrary to petitioners’ assertions, respondent’s Director of Transportation (“director”) explains in an affidavit that MWHS is a “transfer point for students attending Burke” rather than a centralized pick-up point. The director states that petitioners are “not required to drive their child to MWHS for transportation to Burke. [Joseph] is picked up at his district bus stop and transported to Burke.” To support its contention, respondent cites Appeal of Gorsky (47 Ed Dept Rep 162, Decision No. 15,658), in which petitioners’ children attended nonpublic schools and resided within the statutory mileage limitations. The petitioners in Gorsky objected to respondent’s use of a “transfer point” whereby, instead of transporting their children directly to their nonpublic schools, respondent transported them first to its high school, where they transferred to a second bus which took them to their schools each morning. In dismissing petitioners’ claims in Gorsky, the Commissioner distinguished between a centralized pick-up point and a centralized transfer point as follows:

While prior commissioner’s decisions have addressed the use of “centralized pick-up points” [“Centralized pick-up points” are governed by Section 3635(1)(b) of the New York State Education Law and are generally areas to and from which parents are responsible for transporting their children] ... respondent’s transportation plan does not utilize “centralized pick-up points.” Rather, respondent’s plan utilizes a centralized transfer point to and from which respondent provides transportation and at which petitioners’ children simply change buses.
. . .
Unlike the use of “centralized pick-up points” which are allowed only in instances where students live too far away from a nonpublic school to otherwise qualify for transportation (see e.g. Education Law §3635[1][b]), §3635 contains no such restrictions on the use of centralized transfer points. Accordingly, respondent’s use of a centralized transfer point alone does not violate Education Law §3635 and, to the extent that any previous decisions by the Commissioner in appeals filed pursuant to Education Law §310 may be interpreted to the contrary, those decisions are expressly overruled [emphasis in original].

I find the Commissioner’s decision in Gorsky to be controlling in this case. Gorsky was decided after both Hurd and Del Prete and expressly overruled any inconsistent prior decisions.

In the instant appeal, respondent is utilizing MWHS as a centralized transfer point, which does not, in and of itself, violate Education Law §3635. The record indicates that respondent’s transportation plan does not require petitioners to transport Joseph to MWHS or to either of the two alternative locations offered for boarding the Burke shuttle (Sacred Heart School or Central Valley Elementary School) referenced in respondent’s September 4, 2013 letter. Rather, if petitioners do not wish to transport Joseph to MWHS or to avail themselves of respondent’s proposed alternative transportation route, respondent will continue to pick Joseph up at his district bus stop and transport him to Burke via MWHS. Indeed, the purpose of respondent’s September 4, 2013 letter appears to have been to “address some of the concerns addressed by our parents” by presenting two additional optional locations for Burke students to board their shuttle bus, which would involve only one bus ride and would also be closer to some homes. For example, petitioners note that their home is 1.3 miles from the Sacred Heart School location in contrast to the approximately 14.5 mile distance between their home and Burke. Petitioners themselves also refer to the “optional bus route” and “alternative route” in their petition. Accordingly, based on the record before me and in light of the decision in Appeal of Gorsky, I find that respondent is using a centralized transfer point consistent with Education Law §3635.

In addition, petitioners argue that respondent’s alternate bus route involving the Sacred Heart School as an optional pick-up location is dangerous, inconvenient, and not in the best interest of their son in violation of Education Law §3635(1)(a). Petitioners contend that it would take approximately 25 minutes for their son to walk the 1.3 miles to Sacred Heart School, that there is a distance of approximately 44 yards along the route without sidewalks where he would be forced to walk in the road, and that walking this route at 6:00 a.m. would require him to contend with darkness, cold and traffic. Petitioners also appear to argue that respondent’s alternate bus route is unequal compared with other students in the district who are not required to walk such distances, and that other students who are similarly situated receive busing directly to their public high school.

It is well settled that Education Law §3635(1) does not base eligibility for transportation in individual cases on potential hazard (see e.g., Appeal of Kadukara, 51 Ed Dept Rep, Decision No. 16,345; Appeal of Ruescher, 50 id., Decision No. 16,245; Pratt v. Robinson, 39 NY2d 554, 559). 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). Accordingly, petitioners are not entitled to transportation because of the allegedly hazardous route that they say their son would need to travel.

I also note that, contrary to petitioners’ assertions, there is nothing in the record to indicate that Joseph is required to walk to the optional shuttle location at the Sacred Heart School. Rather, while Joseph may walk to or be transported to such location by petitioners, as noted above, should petitioners elect not to do so, respondent would continue to pick Joseph up at his regular district bus stop. Moreover, even assuming, arguendo, that the Sacred Heart School was a required pick-up point for the shuttle, boards of education, as noted above, have discretion to require students to walk to pick-up points from which transportation will be provided (see Education Law §3635[1][d]); Appeal of Girsdansky, 46 Ed Dept Rep 105, Decision No. 15,455). Also, as noted above, where a student’s home is on a dangerous road or at a remote location, the parents are not free from the obligation to assist the student in reaching the pick-up point. It is the responsibility of the parent, not the district, to see that the child safely reaches the pick-up point (Appeal of Brizell, 48 Ed Dept Rep 128, Decision No. 15,814; Appeal of Weinschenk, 47 id. 518, Decision No. 15,770).

I am also unable to find on the record before me that respondent’s transportation plan involves unequal treatment or is discriminatory (see Appeal of Gorsky, 47 Ed Dept Rep 162, Decision No. 15,658). The mere fact that respondent may use a variety of means to transport children to and from their respective schools (i.e., a single bus, two buses, a mini-van and a bus, etc.) does not necessarily demonstrate that students are receiving unequal treatment within the meaning of Education Law §3635 (Appeal of Gorsky, 47 Ed Dept Rep 162, Decision No. 15,658; Appeal of McCarthy and Bacher, 42 id. 329, Decision No. 14,872; Appeal of Fullam, 38 id. 227, Decision No. 14,021).

As to petitioners’ request for reimbursement of the filing fee for this appeal and the cost of transporting Joseph to Central Valley Elementary School each school day, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).

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

THE APPEAL IS DISMISSED.

1 Respondent defines “district bus stop” as a designated location near or in front of the Burke student’s house.

2 Respondent included emails with petitioner John Kyle dated August 19 and August 23, 2013 in which petitioner expressed concerns about being told by the district that he could not get a bus to take his son “directly to school,” asking whether any children who go to district schools “take two buses to school,” stating that the district should provide the “same transportation for his son” as children who attend district schools, and concluding that his son is “entitled to home to school transportation.”

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