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Decision No. 16,827

Appeal of TSUNGANI CLEMONS, MICHELLE DENNIS, TINA FRANCIS, MARTINA NEILSON AND NORDIA QUAMINA, on behalf of minor children, JOSHUA CLEMONS-GOETZ, DAVID DENNIS, KAILHAN FRANCIS, IYANA ECHANDY, JANETT ISAAC, MELODY NEILSON, JAHMARI STENNETT and OTHER CHILDREN SIMILARLY SITUATED, from action of the Board of Education of the Lansingburgh Central School District regarding transportation.

Decision No. 16,827

(September 17, 2015)

Manatt, Phelps & Phillips, LLP, attorneys for petitioners, John J. Faso and James S. Walsh, Esqs., of counsel

Keane & Beane, P.C., attorney for respondent, Stephanie L. Burns, Esq., of counsel

ELIA, Commissioner.--Petitioners challenge the “policy” of the Board of Education of the Lansingburgh Central School District (“respondent” or “district”) regarding transportation for their children, and other children similarly situated, to True North Troy Preparatory Charter Elementary and Middle Schools (collectively “Troy Prep”).  The appeal must be dismissed.

Petitioners’ children attended school at Troy Prep, a charter school serving elementary and middle school students located in Troy, New York when this appeal was commenced.[1]  Troy Prep Middle School opened in 2009 and serves students in grades five through eight.  Troy Prep Elementary School opened in 2011 serving kindergarten students.  In the 2012-2013 school year, Troy Prep Elementary School served students in kindergarten and first grade, and will ultimately serve students in kindergarten through fourth grade by expanding one grade level each school year.  In his affidavit, Troy Prep’s director of operations stated that Troy Prep’s middle and elementary schools are separate and distinct schools with separate principals, policies and school schedules.

In their affidavits, petitioners each state that they reside in the district.  The parties agree that petitioners live between 1.5 and 15 miles from Troy Prep.  Students who reside more than 1.5 miles and less than 15 miles from their assigned school are eligible for transportation under respondent’s transportation policy for the 2012-2013 school year. 

The record indicates that respondent develops its bus routes annually based on the enrollment in its schools and the number of requests received for transportation to charter and nonpublic schools.  During the 2011-2012 school year, respondent began discussing and planning a restructuring of its transportation services[2] and purchased a computer program, Transfinder Routing System, that it utilized in the assignment of all students eligible for transportation by the district for the 2012-2013 school year.

On March 30, 2012, Troy Prep submitted to respondent requests for transportation to and from Troy Prep for the 2012-2013 school year[3] on behalf of 44 of its students believed to reside in the district, including petitioners’ children.  None of the requests were denied or rejected by respondent.[4]

By email dated May 24, 2012, the director of operations of Troy Prep advised respondent that, for the 2012-2013 school year, Troy Prep Elementary School’s arrival time was 7:20 am, dismissal time on Mondays through Thursdays was 3:40 pm, and dismissal time on Fridays was 1:20 pm.  By email dated July 23, 2012, the director of operations of Troy Prep Middle School advised respondent that, for the 2012-2013 school year, Troy Prep Middle School’s start time was 7:35 am, dismissal time on Mondays through Thursdays was 4:40 pm, early dismissal bus time on Mondays through Thursdays was 3:40 pm and dismissal time on Fridays was 1:40 pm.[5]

At its August 16, 2012 meeting, respondent discussed busing options and decided to obtain parent input on the options being considered.  Thereafter, respondent conducted a survey of parents regarding the options for designing the elementary school bus runs.  On August 22, 2012, respondent posted a notice on its website addressing various issues concerning the elementary school bus runs for the 2012-2013 school year.

At its August 27, 2012 meeting, respondent discussed and approved the designation of new bus stops, routes, schedules, and the use of Turnpike Elementary School (“TES”) and Lansingburgh High School (“LHS”) as transfer points for transportation to nonpublic schools.  In her affidavit, the superintendent stated that on August 29, 2012, the initial bus stops, routes and schedules for the 2012-2013 school year were posted on the district’s website and individual cards were sent to the parents or guardians of district students informing them of their children’s designated bus stops and pick-up and drop-off times.  She further stated that, prior to September 6, 2012, respondent faxed the initial bus stops, routes and schedules to all charter and nonpublic schools.

By letter dated August 31, 2012 to the superintendent, Troy Prep’s attorney expressed concern about the proposed transportation plan and requested that respondent modify its plan to include, among other things, direct transportation to and from Troy Prep and transportation from Troy Prep for Troy Prep Elementary School students at 3:40 pm and for Troy Prep Middle School students at 4:40 pm.

On September 4, 2012, respondent posted a notice on its website indicating that in response to concerns, the bus routes for the 2012-2013 school year had been modified and further adjustments were being made.  On September 6, 2012, the district’s schools opened and respondent began transporting students to public and nonpublic schools.  In her affidavit, the superintendent stated that the district has not provided transportation to and from Troy Prep because no student eligible for transportation has appeared at the designated pick-up stops for such transportation.  She further stated that the district did not send a bus to Troy Prep for afternoon pick up when no student was transported in the morning and that Troy Prep had not contacted the district to indicate that there were students requiring afternoon transportation from the district or to request that the district send a bus to Troy Prep in the afternoon.  In his affidavit, Troy Prep’s director of operations stated that Troy Prep engaged a transportation service to continue to provide transportation to students residing in the district until it could reach a resolution with respondent.

In response to additional concerns raised by parents and bus drivers, respondent modified some of the initial bus stops, routes and schedules and on September 12, 2012, posted the information on its website and sent individual cards to the parents or guardians of district students informing them of their children’s designated bus stops and pick-up and drop-off times.  Also on September 12, 2012, the bus stops, routes and schedules were faxed to charter and nonpublic schools.  The modified bus routes were approved by respondent and implemented on September 17, 2012 (“September 2012 transportation plan”).

According to the September 2012 transportation plan, students attending Troy Prep were provided transportation via a single bus to and from Troy Prep.  The bus stopped at four centralized bus stops, including TES and LHS and was scheduled to arrive at Troy Prep at 7:15 am.  In the afternoon, students would be picked up at Troy Prep at 4:10 pm, the midpoint between the dismissal times of Troy Prep Elementary School and Troy Prep Middle School.  Students would not change buses at any of the stops or as they traveled to and from Troy Prep.[6]

By letter dated September 28, 2012, petitioners’ attorney requested that respondent modify its September 2012 transportation plan regarding pick-up and drop-off points and times.  In her October 1, 2012 response, the superintendent explained its policy regarding pick-up points.  She further explained that the September 2012 transportation plan included a morning bus scheduled to arrive at Troy Prep at 7:15 am and an afternoon bus scheduled to pick up all Troy Prep students at an agreed upon time between 3:40 pm and 4:40 pm.  In addition, she indicated that the district could make arrangements for an early pick up on Fridays at an agreed upon dismissal time.  The superintendent advised Troy Prep’s attorney that “unless we hear differently” from Troy Prep, the district plans to discontinue provision of busing on October 5, 2012.  This appeal ensued.

Petitioners assert that respondent’s September 2012 transportation plan designates centralized pick-up and drop-off locations at public schools in violation of Education Law §3635(1)(a), is not reasonable because it causes significant wait times for transportation and loss of class time, and overall treats Troy Prep and public school students differently.[7]  They also contend that the September 2012 transportation plan was developed without any prior public review or comment.  Petitioners seek an order requiring that respondent implement a transportation plan that designates bus stops for students near their homes and not farther from their homes than bus stops for students attending district schools.  They further seek transportation from Troy Prep Elementary school after school at approximately 3:40 pm and from Troy Prep Middle School at approximately 4:40 pm.

Respondent maintains that petitioners did not meet their burden of demonstrating a clear, legal right to the relief requested.  Respondent asserts that it rationally exercised its discretion to balance safety, convenience, efficiency and cost considerations in restructuring its transportation services, that the bus stops, routes and schedules provide reasonable transportation to and from Troy Prep and that it has treated all students the same in restructuring its transportation services.

Preliminarily I will address the procedural issues.  Petitioners attempt to also bring this appeal on behalf of 40 other Troy Prep students “similarly situated.”  Petitioners assert that such students reside in the district, are entitled to transportation by respondent on the basis that they are legally enrolled at and attending Troy Prep, and that upon information and belief, none of the similarly situated students live more than 15 miles from Troy Prep.  They claim that, due to the number of members of the class, joinder in impracticable.  Petitioners’ further claim that all questions of fact are common to all members of the alleged class and that reciting the facts of each member would be redundant because there is one transportation policy and there are only four pick-up locations from which students may obtain transportation to Troy Prep.

An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  Here, while the number of prospective members of the class may have been set forth, petitioners have not shown that all questions of fact are common to all members of the alleged class.  The members of the alleged class live in varying locations within the district and may present many different sets of concerns and claims (Appeal of Aloisio, et al., 38 Ed Dept Rep 169, Decision No. 14,009).  Class status, therefore, is denied.

By letter dated January 10, 2013, respondent requested permission to file a “Reply Affidavit” with exhibits.  Petitioners do not oppose the request.  The Commissioner, in his or her discretion, may permit the service and filing of additional 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 (see Appeal of Malone and Trombley, 39 Ed Dept Rep 135, Decision No. 14,194).  Accordingly, I have accepted respondent’s “Reply Affidavit” with exhibits, but have not considered those portions that should have been submitted with respondent’s answer.

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 petition relates to transportation for the 2012-2013 school year and specific times under the policy for that year.  As the 2012-2013 school year has ended, petitioners’ challenges are academic.

Even if it were not dismissed as moot, the appeal would be dismissed on the merits.  Education Law §3635(1) establishes a system of entitlement to transportation services to nonpublic schools.[8]  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).

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).  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).

Petitioners assert that respondent’s transportation plan violates Education Law §3635 because it impermissibly creates “centralized pick-up points”[9] at TES and LHS.  Respondent maintains that petitioners have misconstrued its actions and that it exercised its discretion to reasonably assign students to pick-up points at TES and LHS.

As noted above, the law does not require a board of education to provide transportation for students directly to and from home.  In addition, as noted above, a board of education has discretion when designating pick-up and drop-off points.  It also has discretion to require students to walk to designated pick-up points from which transportation will be provided.  Further, the law does not prohibit a board of education from designating its schools as pick-up points.  I note that the New York State Education Department has issued guidance on school bus stops, which includes the use of a school site as a bus stop, and provides, in part, that all regulations governing other bus stops must be observed and even more detailed plans must be made for safe and efficient traffic control(http://www.p12.nysed.gov/schoolbus/Parents/htm/school_bus_stops.html).[10]

In her affidavit, the superintendent stated that “the [d]istrict offered and was prepared to provide transportation through a single bus devoted to transportation to and from Troy Prep that picks up/drops off students at four (4) centralized bus stops,”[11] including TES and LHS.  She also stated that “the students that board and disembark the bus at these stops do not change buses as they travel to and from Troy Prep.”  In addition, the superintendent stated that though not required, security personnel are present at LHS when students are being transported to and from LHS.

On this record, I find that the September 2012 transportation plan does not utilize “centralized pick-up points” for students attending Troy Prep as petitioners assert.  Rather, the record indicates that respondent designated four bus stops along the route to Troy Prep, two of which are at public schools.  Here, the students who were assigned to or offered a bus stop at a public school live within 1.5 miles of the assigned public school bus stop, the distance within which a student would be required to walk to school (see Appeal of Mosher, 46 Ed Dept Rep 334, Decision No. 15,525).  The public school bus stops are bus stops like the street intersection bus stops to which students walk.  Respondent’s designation of a public school as a pick-up or drop-off location does not, in and of itself, create a “centralized pick-up point.”  Accordingly, I find that respondent’s transportation plan designates bus stops, not centralized pick-up points, and is consistent with §3635(1)(a) of the Education Law in that regard(see Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of Gorsky and Burbank, et al., 47 id. 162, Decision No. 15,658).

Petitioners also assert that the September 2012 transportation plan, with an afternoon pick-up time of 4:10 pm is not reasonable in that its elementary school students would wait unreasonably long periods of time for transportation home and its middle school students would be dismissed 30 minutes early resulting in a loss of instructional time.  Petitioners further assert that a 4:10 pm dismissal time for its middle school students would violate Troy Prep’s charter.

As noted above, 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 record indicates that Troy Prep’s elementary and middle schools are located in the same building, with dismissal times of 3:40 pm and 4:40 pm, respectively.  The record further indicates that while respondent scheduled an afternoon bus run for all Troy Prep students at 4:10 pm, it offered to provide the afternoon bus run any time between 3:40 pm and 4:40 pm.  With respect to petitioners’ contention that a 4:10 pm bus run would require its elementary school students to wait an unreasonably long period of time, I note that previous Commissioners’ decisions have addressed waiting periods (see Appeal of Cornerstone Christian School, et al., 30 Ed Dept Rep 452, Decision No. 12,532) and that shorter waiting periods are generally preferable for younger students (see Appeal of Eisikowitz, 32 id. 160, Decision No. 12,791).  However, a 30-minute wait period has not been determined to be unreasonable (see Appeal of Eisikowitz, 32 Ed Dept Rep 160, Decision No. 12,791).

As noted above, Troy Prep Middle School has a dismissal time of 4:40 pm.  In his affidavit, the director of operations at Troy Prep indicated that dismissal of middle school students prior to the end of the school day would put Troy Prep in violation of its charter and would result in the loss of tutoring sessions and other individualized help, services which are central to Troy Prep’s model.  The record includes a sample daily schedule for Troy Prep Middle School showing a 40-minute enrichment period from 3:50 pm to 4:30 pm.  However, while petitioners assert that the enrichment services are part of Troy Prep’s model, it is unclear from the record whether all Troy Prep Middle School students are required to participate in the enrichment period or only those students who need additional help.  It is also unclear from the record whether missing a portion of the enrichment period would result in a loss of instructional time for any of the plaintiffs’ middle school children.[12]  I note that the record indicates that there is an early dismissal bus for middle school students.  Factors to be considered in determining reasonableness include dismissal time, reason for dismissal time, cost and the additional arrangements that must be made (see Appeal of Donn, 49 Ed Dept Rep 187, Decision No. 15,994; Appeal of Salvia, 36 id. 365, Decision No. 13,750).

The record further indicates that there will be an additional cost to respondent to provide a second afternoon bus.  The superintendent indicated in her affidavit that an additional afternoon bus would impose an additional cost of $44,662 per year, while in his affidavit, Troy Prep’s director of operations disagreed with that figure and estimated the cost of a second afternoon bus for transportation Monday through Thursday to be no more than $14,461.

Here, Troy Prep has chosen to dismiss its elementary school at 3:40 pm and its middle school at 4:40 pm.  To accommodate that schedule, respondent would have to provide two separate bus runs to the same building, increasing its transportation costs.  I note that respondent has offered to provide the afternoon bus run any time between 3:40 pm and 4:40 pm.  On this record, I find that respondent can reasonably fulfill its obligations under Education Law §3635 by providing one afternoon bus run from Troy Prep, as offered, at any time between 3:40 pm and 4:40 pm (see Appeal of Berger, 22 Ed Dept Rep 443, Decision No. 11,028; Appeal of Donn, 49 id. 187, Decision No. 15,994).

Petitioners also argue that respondent’s transportation plan does not treat students equally. Specifically, petitioners assert that their children are required to walk to bus stops that are farther away from their homes as compared to students attending the district’s schools.  They also claim that their children are assigned to centrally located pick-up locations that are not imposed on students attending the district’s public schools.  However, the record indicates that all students are placed on transportation routes using the Transfinder Routing System and assigned to centralized bus stops where available, that TES is the designated stop for Rensselaer Park Elementary School students who live within 1.5 miles of TES and that TES also is the designated stop for some students attending the district’s middle school and LHS.  On this record I am unable to find that respondent’s September 2012 transportation plan involves unequal treatment or is discriminatory. 

Although I am constrained to dismiss the appeal, I urge the parties to work cooperatively together and with the administrators at Troy Prep to find a reasonable solution in this matter.

I have considered the parties’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1]Of the seven students named in the petition, three students were in either sixth or eighth grade when this appeal was commenced in the 2012-2013 school year.  Specifically, petitioner Clemons is the parent of a student who was in eighth grade in the 2012-2013 school year and petitioners Francis and Quamina are parents of students who were in sixth grade during the 2012-2013 school year.

 

[2]In her affidavit, the superintendent indicated that discussions regarding the restructuring of the district’s transportation services were prompted by respondent’s decision to operate Turnpike Elementary School as a primary school for students in pre-kindergarten through grade two and to operate Rensselaer Park Elementary School for students in grades three through five instead of operating two elementary schools for students in pre-kindergarten through grade five.

 

[3]According to the superintendent, respondent provided transportation to Troy Prep Middle School during the 2009-2010 and 2010-2011 school years, but did not provide transportation to Troy Prep during the 2011-2012 school year because no parent or guardian submitted a timely request for such transportation.

 

[4]In her affidavit, the superintendent stated that receipt of applications for transportation does not guarantee the provision of transportation as all addresses have to be confirmed by the district’s attendance officer.

 

[5]I note that there are inconsistencies in the record regarding the school hours.  In his affidavit, the director of operation stated that Troy Prep Elementary School begins at 7:30 am and ends at 3:40 pm Monday through Thursday and ends at 1:20 on Friday.  He further stated that Troy Prep Middle School begins at 7:40 am and ends at 4:40 pm Monday through Thursday and at 1:40 pm on Friday.

 

[6]Of the seven students named in the petition, four attended Troy Prep Middle School and three attended Troy Prep Elementary school in the 2012-2013 school year.  As noted above, of the four students who attended Troy Prep Middle School, three were in either sixth or eighth grade in the 2012-2013 school year.  Only one was in fifth grade in the 2012-2013 school year.  According to the September 2012 transportation plan that student was assigned a bus stop at LHS.  Of the three students who attended Troy Prep Elementary School, only one was assigned a bus stop at a public school.  That student was assigned a bus stop at LHS.  With respect to petitioner Francis, respondent offered a pick-up point at TES rather than the assigned bus stop at a street intersection.

 

[7]In their Memorandum of Law, petitioners indicate that they no longer dispute the use of a single bus for morning transportation to Troy Prep and the use of a single bus for Friday afternoon transportation from Troy Prep.

 

[8] Pursuant to Education Law §2853(4)(b), for purposes of Education Law §3635, a charter school shall be deemed a nonpublic school.

 

[9] Centralized pick-up points are allowed only in instances where students live too far away from a nonpublic school to otherwise qualify for transportation, are governed by Education Law §3635(1)(b) and are generally areas to and from which parents are responsible for transporting their children (Appeal of Gorsky and Burbank, et al., 47 Ed Dept Rep 162, Decision No. 15,658).

 

[10] While the guidance makes general recommendations which are not mandated by statute or regulation, such recommendations do have probative value when considering what may or may not be reasonable in particular circumstances (see Appeal of Gorsky and Burbank, et al., 47 Ed Dept Rep 162, Decision No. 15,658).

 

[11] In her reply affidavit, the superintendent explained that when she refers to “centralized bus stop,” she is referring to bus stops that are placed in a location that is as close to the center of the residences of the students to be picked up at the stop as can be accomplished when factoring in the other stops in the area, safety and efficiency.  She further explained that the location of such centrally located bus stops is determined by the number of students requiring transportation from the catchment area of each school.

 

[12] As noted above, of the four students who attended Troy Prep Middle School, only one was in fifth grade in the 2012-2013 school year.