Appeal of N.A., on behalf of her son B.A., from action of the Board of Education of the Valley Stream 30 Union Free School District regarding transportation.

Decision No. 17,162

(August 24, 2017)

Law Offices of Guercio & Guercio, LLP, attorneys for respondent, Barbara J. Emigholz, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Valley Stream 30 Union Free School District (“respondent”) to deny her request for transportation.  The appeal must be dismissed.

During the 2016-2017 school year, petitioner’s son was a first grader in respondent’s district.  Respondent’s transportation policy provides:

Transportation between home and school shall be provided at district expense to students in kindergarten through sixth grade if they live between 2 and 15 miles from their school.

On March 31, 2017, petitioner submitted an application, on behalf of her son, to the district requesting bus transportation to Hamza Academy, a nonpublic school.  By letter dated April 8, 2017, respondent’s assistant superintendent for business (“assistant superintendent”) denied petitioner’s request for transportation. The letter stated:

[T]he distance from home to school does not meet the minimum mileage requirement as set forth by the Department of Education of the State of New York Transportation Unit.

This appeal ensued.  Petitioner’s request for interim relief was denied on June 9, 2017. 

Petitioner argues that according to MapQuest routing software (”MapQuest”), the distance between her home and Hamza Academy meets the mileage requirement.  Petitioner further argues that the district is “making this decision to deny bus transportation arbitrarily” and that she has “lost [her] trust in the school district that they can work justly and adhere to rules and regulations rather than there [sic] own.”[1]     

Respondent argues that the appeal should be dismissed for improper service.  Respondent further argues that petitioner has failed to state a claim upon which relief can be granted and that she has failed to meet her burden of proof.  Respondent asserts that it acted appropriately and properly and that the challenged decision was not arbitrary, capricious or unreasonable.

First, I will address a procedural matter.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877). 

On May 15, 2017, the petition was filed with my Office of Counsel.  Petitioner also submitted an affidavit of service indicating that the petition was served on the “district clerk,” who was duly authorized to accept service, on May 8, 2017.  However, respondent asserts that the petition was not served on any person authorized by the district to accept service of legal documents.  Respondent submitted an affidavit from the district clerk who states that she had never been served with the petition in this matter.  Respondent also submitted an affidavit from the secretary to the superintendent of schools (“secretary”).  The secretary’s affidavit states that a woman came into the district’s administration office and handed her a folder which “contained, upon information and belief” the notice of petition and petition in this matter.  The secretary states that the woman did not ask her name or title, or whether she was authorized to accept service of legal documents on behalf of the district and that the woman also did not state her intention to serve the district with legal documents.  Finally, the secretary’s affidavit states that she had not been designated by the Board of Education to accept service of legal documents on behalf of the district. 

Indeed, a secretary is not one of the individuals set forth in §275.8(a) of the Commissioner’s regulations upon whom service on a board of education may properly be effected.  Petitioner submits no reply or other evidence to refute respondent’s claim that the secretary was not authorized to accept service.

When there is no proof that an individual is authorized to accept service on behalf of respondent, service is improper and the appeal must be dismissed (Appeal of C.C., 53 Ed Dept Rep, Decision No 16,526; Appeal of Willis, 50 id., Decision No. 16,211; Appeal of Terry, 50 id., Decision No. 16,117).  On this record, I cannot conclude that petitioner properly served a copy of the notice of petition and petition on respondent in accordance with §275.8(a) of the Commissioner’s regulations. Accordingly, the appeal must be dismissed.

Even if the appeal was not dismissed on procedural grounds, it would 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).

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).

Petitioner has failed to meet her burden of proof.  Petitioner argues that she meets the mileage requirement and that “MapQuest has corrected its system and the location of the school to where it is suppose[d] to be located.”  In support of the petition, she attaches “the printed directions of all the routes the system provides.”  Indeed, the measurement of routes provided by petitioner, which use 200 Stuart Avenue as the school’s address, do indicate that the distance between petitioner’s house and Hamza Academy is two or more miles.

Establishing transportation routes and measuring distances is within the discretion of a board of education, and the Commissioner will not set aside such actions unless it appears that he board has been arbitrary, capricious or unreasonable (Appeal of a Student with a Disability, 48 Ed Dept Rep 223, Decision No. 15,844; Appeal of Sanguine, et al., 48 id. 179, Decision No. 15,830).  Education Law §3635(1)(a) requires that the distance be measured by the nearest available route, which is not necessarily the most direct and efficient route (see Appeal of Sanguine, et al., 48 Ed Dept Rep 179, Decision No. 15,830).

In this appeal, an affidavit from respondent’s assistant superintendent indicates that the district’s “routing calculations” are made using MapQuest and are based on the student’s address and the address of the school.  The affidavit further indicates that eligibility for transportation under the district’s policy is based on “the nearest available route between the student’s home and school” and that the distance between petitioner’s home and Hamza Academy, using 200 Stuart Avenue as the address, is 1.8 miles.  Additionally, the assistant superintendent states that to confirm its finding, the district also used Transfinder bus routing software, which calculated the distance between petitioner’s home and Hamza Academy as 1.78 miles.  Respondent also provides printed directions from MapQuest which, although a different route than the directions submitted by petitioner, indicate that the distance is less than two miles.  Since petitioner herself uses 200 Stuart Avenue as the address for Hamza Academy, it is not clear whether she is continuing to argue that respondent erred by not using 202 Stuart Avenue as the school’s address.  However, I take administrative notice that in Appeal of N.A., 57 Ed Dept Rep, Decision No. 17,155, another appeal in involving measurement of the distance between petitioner’s home and Hamza Academy for purposes of transportation in the 2016-2017 school year, respondent determined that such distance was less than two miles using the nearest available route using both 200 and 202 Stuart Avenue as the school’s address.

Accordingly, while petitioner has presented measurements using various alternative routes, she has not met her burden of proving that respondent acted arbitrarily, capriciously or unreasonably in selecting the routes it used in its measurement.

Therefore, based upon the record before me I cannot conclude that respondent's determination was arbitrary or capricious.

THE APPEAL IS DISMISSED.

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