Appeal of E.F., on behalf of his children K.F. and N-A.F., from action of the Board of Education of the Guilderland Central School District regarding transportation.

Decision No. 17,186

(September 18, 2017)

Honeywell Law Firm PLLC, attorneys for respondent, Christopher J. Honeywell, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the decision of the Board of Education of the Guilderland Central School District (“respondent”) to deny his request to change the transportation pick-up/drop off point (“bus stop”) for his children, K.F. and N-A.F. (“the students”).  The appeal must be dismissed. 

Petitioner and the students live within respondent’s district on a private road in a residential development.  Respondent currently provides transportation for the students at a designated bus stop located less than .02 miles from petitioner’s residence.  By email dated January 11, 2016, petitioner wrote to respondent’s Assistant Superintendent of Business (“assistant superintendent”) and requested that respondent relocate the bus stop to a closer cul-de-sac on their street.  By email dated January 14, 2016, the assistant superintendent denied petitioner’s request.  This appeal ensued. 

Petitioner argues that the bus stop location is “not a safe stop” for several reasons.  Petitioner avers that, to enter and exit the school bus, the students must cross a “heavily traveled” road in “a busy area with new developments and a growing population” with no crosswalk, and “potential hazards from the driveway of the construction site.”  He also avers that there are consecutive bus stops that are so close together they cause a “‘stop and go and stop’” traffic pattern and that he has “observed motorists being confused as to whether to stop again, continue on or just speed up.”  Petitioner contends that this “pick[-]up pattern is not a good practice ... and is not in compliance with the safety route recommendations provided by NYSED P-12.gov.”  Petitioner further avers that there is no “safe waiting area” because there is no sidewalk.  He also argues that there are “snow-narrowed roads” and that “[i]n the event of snow, ice, rain, and other inclement weather [the students] are exposed to [these] hazards....”  Petitioner requests that the bus stop be re-located to the cul-de-sac on which he resides.  He also requests that the district “pick[-]up the children at second [sic] to our stop from the near-side....”  

Respondent contends that the appeal must be dismissed as untimely and that any claim with respect to any individual or group of people not named in the caption or properly identified as within the group of petitioners be dismissed for lack of standing. Respondent further contends that petitioner has failed to state a claim upon which relief can be granted and that respondent’s determination was not arbitrary, capricious, unreasonable or an abuse of discretion. Finally, respondent objects to the scope of petitioner’s reply. 

First, I will address several procedural matters.  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).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.[1]

I note that respondent’s memorandum of law raises, for the first time, a claim of defect in personal service.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Therefore, respondent’s assertions regarding service of the petition cannot be considered.  Failing to include such claim in the answer constitutes a waiver of that defense (see Appeal of Munoz-Feliciano, 54 Ed Dept Rep, Decision No. 16,773).

An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689). Petitioner lacks standing to assert the rights of others, including rights of students other than his own children (see Appeal of McCarthy, 54 Ed Dept Rep, Decision No. 16,631; Appeal of Walker, et al., 53 id., Decision No. 16,609).  Therefore, to the extent petitioner seeks a change in pick-up or drop off location of students other than his own children, he lacks standing to do so and such claims must be dismissed. 

Respondent asserts that the appeal must be dismissed as untimely. 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).  Here, the petition was not served upon respondent until February 19, 2016, more than 30 days after the assistant superintendent’s January 14, 2016 email,[2] which advised petitioner that the students’ bus stop would not be changed.  In his reply, petitioner asserts that after an initial attempt to file his petition with my Office of Counsel on February 12, 2016, he was delayed in serving the petition because of his need to take care of his wife, who was ill, coupled with his work schedule.  However, 8 NYCRR §275.16 requires that the reasons for failure to commence a timely appeal be set forth in the petition, and in any case, petitioner’s explanation in his reply does not establish good cause for the delay.  Personal illness is not generally a sufficient excuse for a delay (see Appeal of Jaroz, 34 Ed Dept Rep 600, Decision No. 13,423), and neither petitioner’s work schedule nor his wife’s illness satisfactorily explain the delay.  Because the appeal was not commenced within the required 30-day period, and petitioner has not established good cause for the delay, it is untimely and must be dismissed.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. 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).

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).  

The record demonstrates that respondent considered petitioner’s request for a change in the students’ bus stop and, following an investigation, its assistant superintendent deemed it to be safe. Although I am sympathetic to petitioner’s concerns, other than his conclusory and speculative assertions that traffic conditions render the pick-up point unsafe, the record is devoid of evidence that the district’s transportation determination was arbitrary, capricious, unreasonable or an abuse of discretion.  Further, the safety factors raised by petitioner, including the nature and volume of traffic, are identical to characteristics of many pick-up points in rural and suburban areas, and are not, in and of themselves, a basis for deeming the current bus stop unsafe (see e.g. Appeal of Weinschenk, 47 Ed Dept Rep 518, Decision No. 15,770; Appeal of Kelsey, 38 id. 396, Decision No. 14,063; Appeal of O’Connell, 37 id. 22, Decision No. 13,794).  On this record, petitioner has not met his burden of proving that respondent’s denial of his request to change his children’s pick-up point was arbitrary or capricious, unreasonable or an abuse of discretion.[3]

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

THE APPEAL IS DISMISSED.

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