Appeal of DAVID and SUSAN STANISZEWSKI, on behalf of their daughter CORTNEY, from action of the Board of Education of the City School District of the City of Lackawanna, Superintendent Anne G. Spadone and Assistant Superintendent Lisa A. Almasi, regarding transportation.

Decision No. 16,962

(August 29, 2016)

Carl W. Morgan, P.C., attorneys for petitioners, Carl W. Morgan, Esq., of counsel

Barclay Damon, LLP, attorneys for respondent Board of Education of the City School District of the City of Lackawanna, John P. Gaughan, Esq., of counsel

     ELIA, Commissioner.--Petitioners appeal the refusal of the Board of Education (“respondent”)^[1] of the City School District of the City of Lackawanna (“district”) to transport their daughter, Cortney, from their residence in the district to a nonpublic school located outside of the district.  The appeal must be dismissed.

Petitioners are residents of respondent’s district who elected to send their daughter to the Nichols School (“Nichols”), a nonpublic school located outside of the district in Buffalo, for her freshman year of high school beginning in September 2016. On or about January 25, 2016, petitioners contacted the district’s assistant superintendent for administrative services (“assistant superintendent”) to arrange for their daughter’s transportation to Nichols. 

Respondent’s transportation policy (“Policy 5520”) provides that, for nonpublic schools located outside the City of Lackawanna, “[t]transportation will be provided for pupils in grades nine through twelve who reside 1.5 miles or more from the school they attend up to a maximum of ten miles ....”  In a series of e-mail exchanges between petitioners and the assistant superintendent, it was initially noted that Nichols was 12.8 miles from petitioners’ street and petitioners were advised that transportation could not be provided because “Nichols is not within the mileage limits for transportation.”

Petitioners thereafter requested a meeting with the assistant superintendent and district superintendent to discuss the matter and to provide documentation in support of their transportation request.  Rather than scheduling a meeting, the assistant superintendent issued a letter dated February 4, 2016, stating that, pursuant to Policy 5520, Cortney was not eligible for transportation because the route from petitioners’ residence to Nichols exceeded ten miles.  

Despite receiving this letter, on February 9, 2016, petitioners submitted a formal “Transportation Service Request” requesting transportation for Cortney from their residence to Nichols.  It appears, however, that the district never acted on that request.  Consequently, petitioners commenced this appeal.

Petitioners argue that their daughter is entitled to transportation because they calculated three different routes from their residence to Nichols that were each less than the ten-mile threshold set forth in Policy 5520.

Respondent argues that it has broad discretion to establish transportation routes, as well as measuring points, for determining transportation eligibility.  Respondent also contends that petitioners’ counsel should be disqualified, claiming that a potential conflict of interest might exist because he was the former attorney for the district. 

The appeal must be dismissed.  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).

A city school district may, but is not required to, provide transportation to students (Education Law §3635[1][c]).  Where such district elects to provide transportation, it must do so equally to all students in like circumstances (Education Law §3635[1][c]; Sands Point Academy, et al. v. Bd. of Educ., 63 Misc 2d 276; Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891).  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).

Further, 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). 

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).

As noted, respondent’s Policy 5520 states, in pertinent part, that pupils attending schools outside the City of Lackawanna will be provided with transportation “up to a maximum of ten miles . . . .”  In an attempt to establish that they fall within this ten mile limit, petitioners submit measurements from their residence to Nichols as calculated by three separate internet mapping websites: (1) MapQuest – 9.6 miles; (2) Google Maps – 9.9 miles; and (3) Bing Maps – 9.8 miles.  In addition, they submit an affidavit from a City of Lackawanna police officer who drove a route with petitioners from their residence to Nichols that was measured by both a GPS device and odometer as being less than 10 miles.

Respondent, however, contends that the routes selected by petitioners are not proper or satisfactory for transporting pupils, as its transportation vendor must transport students on passable and safe roadways. Thus, although certain routes may exist that are less than 10 miles, the routes its vendor will use are more than 10 miles.  In support of this argument, respondent submits three separate acceptable routes from the property line of petitioners’ residence to Nichols, as plotted by MapQuest, that are 15.8 miles, 15 miles and 11 miles - each of which is in excess of the 10-mile limit. 

The measuring point of the residential property line, used in respondent’s calculation, has previously been upheld (Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636). Moreover, it is well-settled that the establishment and measurement of these routes were matters well within respondent’s discretion (Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636). 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). 

Petitioners have not offered any evidence that the routes selected by respondent were unreasonable or that the measurement of these routes was inaccurate (Appeal of Mills, 49 Ed Dept Rep 171, Decision No. 15,988). As noted, petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief. On this record, petitioners have failed to meet their burden of proving that respondent’s denial of their transportation request was arbitrary, capricious or unreasonable.

To the extent respondent requests that petitioners’ counsel be disqualified from representing them in this appeal, such a request is not properly before me.  Education Law §310 authorizes appeals from, inter alia, actions of a board of education, school district officer or other school authority.  I have no jurisdiction over petitioners’ counsel to entertain respondent’s request.  If respondent believes that the attorney has engaged in any professional misconduct, it may address such complaint to the appropriate department of the New York State Supreme Court, Appellate Division.

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

THE APPEAL IS DISMISSED.

END OF FILE