Appeal of LAURA ARNWINE, on behalf of her daughter RACHEL, from action of the Board of Education of the Middleburgh Central School District regarding transportation.

Decision No. 17,197

(September 27, 2017)

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

ELIA, Commissioner.--Petitioner appeals a determination of the Board of Education of the Middleburgh Central School District (“respondent”) denying her daughter transportation.  The appeal must be dismissed.

Voters within respondent’s district have increased the maximum distance for public school transportation from the statutory 15 miles to 18 miles (see Education Law §3635[1]).  At all times relevant to this appeal, the 18-mile maximum mileage limit was in effect.

Petitioner submitted a request for transportation to a nonpublic school for the 2013-2014 school year prior to the April 1 deadline.  Respondent approved this request on April 10.

On or about August 30, respondent discovered that the distance between petitioner’s home and the nonpublic school exceeded 18 miles.  On September 2, respondent’s business manager contacted petitioner and informed her that transportation would not be provided to the nonpublic school for the upcoming school year.  On September 11, respondent rescinded its approval of petitioner’s transportation request.  This appeal ensued. 

Petitioner seeks a determination that respondent is obligated to transport her daughter to the nonpublic school, arguing that the district provided transportation to one of her other children “for four years.”  Petitioner additionally asserts that respondent’s actions have affected two other families, and that one of these families has a child who is eligible for special education services pursuant to the Individuals with Disabilities Education Act.  Petitioner further seeks a declaration “as to whether the [s]uperintendent was within her duty to cancel the busing without approval of the Board [o]f Education.” 

Respondent contends that petitioner’s request for a determination as to the legality of actions taken by the superintendent seeks declaratory relief which is not available in an appeal pursuant to Education Law §310.  Respondent further argues that petitioner lacks standing to assert claims on behalf of other district residents.  Respondent additionally contends that it was not obligated to provide transportation to the student because the distance between the student’s home and the nonpublic school exceeded the 18-mile transportation limit.  Respondent also argues that because no other district student within the transportation limits requested transportation to the nonpublic school, it was not obligated to establish a centralized pick-up point pursuant to Education Law §3635(1)(b)(i).  Respondent further submits that it was not required to provide transportation pursuant to Education Law §3635(1)(b)(ii) because this provision is discretionary and otherwise inapplicable to petitioner.

First, I must address a preliminary matter.  Petitioner seeks a “declaration” as to the propriety of the superintendent’s alleged cancellation of the disputed transportation “without approval of the Board [o]f Education.”  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Therefore, I decline to offer an advisory opinion as to the legality of the superintendent’s actions. 

Turning to the merits, 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 presents two arguments in support of her position.  First, petitioner suggests that respondent is estopped from denying transportation since it has provided transportation to the nonpublic school for the past four years.  However, it is well-settled that equitable estoppel does not apply against a governmental subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, 71 NY2d 274; Hamptons Hosp. and Medical Center v. Moore, et al., 52 NY2d 88; Appeal of Perez, 42 Ed Dept Rep 71, Decision No. 14,779).  Therefore, upon discovery of its noncompliance with Education Law §3635, respondent was not estopped from correcting such error (Parkview Assoc. v. City of New York, 71 NY2d 274; see also Appeal of Kadukara, 51 Ed Dept Rep, Decision No. 16,345; Appeal of McMillan, 31 id. 343, Decision No. 12,661).  A board of education is not required or authorized to provide transportation that was supplied in error (Appeal of Heffernan, 43 Ed Dept Rep 447, Decision No. 15,046; Appeal of Dickinson, 39 id. 41, Decision No. 14,168; Appeal of McMillan, 31 id. 343, Decision No. 12,661).  While the timing of respondent’s decision was inconvenient for petitioner, which respondent acknowledges, this timing does not affect respondent’s legal obligations regarding transportation.

Second, petitioner contends that respondent’s decision will adversely impact two other families who are, presumably, residents of respondent’s district.  While petitioner has standing to bring this appeal on her own behalf to the extent she has been aggrieved by the actions of respondent, she lacks standing to assert the rights of others, including those belonging to other students or families in respondent’s district (see Appeal of Smith-Babcock and House, 56 Ed Dept Rep, Decision No. 17,066; Appeal of McCarthy, 54 id., Decision No. 16,631).  Therefore, this claim must be dismissed.

While petitioner has failed to meet her burden of proof, I note, for the benefit of the parties, that respondent was not obligated to provide transportation to petitioner’s daughter under the circumstances described in the record.  As respondent notes, the total distance between petitioner’s home and the nonpublic school exceeds the 18-mile transportation limit established by the voters of respondent’s district.[1]  Moreover, as respondent correctly notes, it was not required to establish a centralized pick-up point because no district resident residing within the 18-mile maximum mileage limit requested transportation to the nonpublic school for the relevant school year, and Education Law §3635(1)(b)(i) 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).  Additionally, respondent was not required to provide transportation via a centralized pick-up point pursuant to Education Law §3635(1)(b)(ii) because this provision is discretionary and the record indicates that the nonpublic school is located at least 21.69 miles from the nearest public school building which could be designated as a centralized pick-up point (Education Law §3635[1][b][ii]; Appeal of Poles, 55 Ed Dept Rep, Decision No. 16,800; Appeal of N.B., 53 id., Decision No. 16,511).[2]

Accordingly, petitioner’s appeal is without merit and must be dismissed.

THE APPEAL IS DISMISSED.

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