Appeal of a STUDENT WITH A DISABILITY, by her parents, from action of the Board of Education of the Salem Central School District, the Salem Central School District and Superintendent Kerri Zappala-Piemme, regarding transportation.

Decision No. 16,858

(January 4, 2016)

Tabner, Ryan & Keniery, LLP, attorneys for petitioners, Tracey L. Bullett, Esq. of counsel

Girvin & Ferlazzo, P.C., attorneys for respondents, Kristine A. Lanchantin, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the denial of their request for a later afternoon pickup of their daughter (“the student”) from a nonpublic school by the Board of Education of the Salem Central School District (“board”), the Salem Central School District (“district”) and Superintendent Kerri Zappala-Piemme (“superintendent”) (collectively, “respondents”).  The appeal must be dismissed.

The record indicates that, during the 2011-2012 school year, the student was a sophomore at the Long Trail School, a nonpublic school located approximately 13 miles from her home.  During that school year, the Long Trail School day began at 8:00 a.m. and ended at 3:00 p.m. Mondays through Thursdays and ended at 12:30 p.m. on Fridays.[1]  The school day for respondents’ junior/senior high school began at 8:00 a.m. and ended at 2:25 p.m. 

By letter dated March 5, 2011, the student’s mother requested transportation for the student to the Long Trail School for the 2011-2012 school year.  The record indicates that this request was approved.  While petitioner alleges that respondents agreed to pick the student up at 3:00 p.m. Mondays through Thursdays during the 2011-2012 school year, respondents deny this allegation and assert that, following the approval of petitioners’ transportation request and continuing through the summer months, the superintendent and the headmaster of the Long Trail School (“headmaster”) communicated regarding potential transportation arrangements for the 2011-2012 school year. 

On August 11, 2011, the student’s mother met with the superintendent, the headmaster, and another Long Trail parent to discuss ways to provide transportation to students of the Long Trail School.  By letter dated August 17, 2011, the student’s mother outlined four transportation options for the superintendent’s consideration.  Respondents ultimately decided to establish the afternoon transportation pick-up for Long Trail students at 2:45 p.m., 15 minutes prior to the dismissal of classes at Long Trail.

In early September 2011, the student’s mother emailed and had discussions with the superintendent regarding the Long Trail transportation schedule.  On September 14, she met with the superintendent to express her concerns about the student missing part of her last period class and requested that an alternative to the current bus schedule be considered.  The superintendent declined to take action on the matter.  By letter dated September 14, the student’s mother asked the board to establish a reasonable transportation schedule.  The board also declined to take action on the matter.  This appeal ensued.  Petitioners’ request for interim relief was denied.

Petitioners contend that it is not unreasonable to provide the student with a 3:05 p.m. transportation pickup following her last period class and that her continued absence from part of the school day adversely affects her grades.  Petitioners request that I order the district to transport the student at 3:05 p.m. following the end of the Long Trail School day.

Respondents contend that petitioners have failed to demonstrate a clear legal right to the relief requested and have failed to join necessary parties. 

I must first address the parties’ submissions.  Pursuant to §276.1(a) of the Commissioner’s regulations, an affidavit in opposition to an application for a stay “shall be served within three business days after service of the petition on all other parties ..., unless the Commissioner shall provide otherwise.”  In the present matter, the petition was served on respondents on Monday, October 3, and respondents’ answer was served on Tuesday, October 11.  Respondents explain the delay by asserting that, due to the superintendent’s absence from the district at a conference, their attorneys did not receive the petition in this matter until October 7.  As noted, respondents served their response on October 11, which was the next business day due to the Columbus Day holiday on October 10.  Under these circumstances, I have accepted respondents’ opposition to petitioners’ request for interim relief as part of the record.  I also note that, even if it were not considered in opposition to petitioners’ request for interim relief, such submission comprised respondents’ answer to the petition, which was timely served within 20 days from service of the petition pursuant to §275.13 of the Commissioner’s regulations.

Respondents allege that petitioners’ reply is untimely.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).  In this case, respondents’ answer was served by mail on October 11 and petitioners’ reply was served on October 24.  Petitioners’ reply is therefore timely.

However, 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).  Petitioners’ reply contains a supplemental affidavit from the headmaster that contains facts and allegations that should have been in the petition.  Therefore, while I have reviewed the reply and supplemental affidavit, I have not considered those portions that belatedly add assertions that should have been in the petition.

Petitioners allege that respondents’ memorandum of law is untimely.  Section 276.4 of the Commissioner’s regulations provides that a respondent must serve its memorandum of law within 30 days after service of the answer or 20 days after service of the reply, whichever is later.  Where an answer or reply is served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the applicable period (8 NYCRR §§275.14[a]; 276.4[a]).  Because petitioners served their reply by mail on October 24, respondents were required to serve their memorandum of law on or before November 17, which they did.  Accordingly, respondents’ memorandum of law is timely.

Respondents argue that the appeal must be dismissed for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Other than their conclusory allegations, respondents set forth no facts or other evidence to establish that the rights of the Long Trail School and the four other students who attend the Long Trail School would be adversely affected by a determination that respondents should transport students at 3:05 p.m., the end of the Long Trail School day.  The burden is on respondents to establish their affirmative defense and, on this record, I find that respondents have failed to do so (see Application of Simmons, 53 Ed Dept Rep, Decision No. 16,596; Appeal of Mogel, 41 id. 127, Decision No. 14,636). 

Nevertheless, 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).  In this case, the record indicates that petitioners’ transportation request relates to the 2011-2012 school year, which has ended.  Because no meaningful relief can be granted, the appeal must be dismissed as academic (Appeal of Milliman-Estus, 52 Ed Dept Rep, Decision No. 16,394).

Although I am compelled to dismiss the appeal as moot, I must comment on respondents’ provision of transportation in this case.  The Education Law does not require a board of education to transport children attending nonpublic school in all circumstances (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of Salvia, 36 id. 365, Decision No. 13,750; Appeal of Frasier, 35 id. 499, Decision No. 13,612).  Authorities at public and nonpublic schools are obligated to cooperate in a reasonable manner in the scheduling of classes and transportation (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of Salvia, 36 id. 365, Decision No. 13,750; Appeal of Frasier, 35 id. 499, Decision No. 13,612).  Public school authorities may not dictate the opening or closing hours for a nonpublic school, but the adoption of unreasonable or erratic schedules relieves public school authorities of the responsibility for arranging to meet those schedules (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of Salvia, 36 id. 365, Decision No. 13,750; Appeal of Berger, 22 id. 443, Decision No. 11,028).  Even if students may be required to remain for academic courses, public school authorities are not required to provide transportation arrangements beyond what is reasonable (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of Salvia, 36 id. 365, Decision No. 13,750; Appeal of Berger, 22 id. 443, Decision No. 11,028).  In determining reasonableness, there are several factors to be considered -- the dismissal time, the reason for the dismissal time, the cost, and the additional arrangements that must be made (see Appeal of Salvia, 36 Ed Dept Rep 365, Decision No. 13,750 [half hour difference in dismissal time between public and nonpublic schools not a basis to invalidate a district’s transportation policy]).

Consistent with these principles, I remind respondents that, in cases where the opening and/or closing times at nonpublic schools were not unreasonable or widely at variance with the public school schedule, the Commissioner has concluded that transportation “must be provided in such a manner that the students arrive on time for the beginning of school and are not picked up until the end of their school day” (Appeal of Osgood, 25 Ed Dept Rep 274, Decision No. 11,577; see Appeal of Tyo, et al., 20 id. 384, Decision No. 10,450).

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

THE APPEAL IS DISMISSED.

END OF FILE