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Decision No. 17,260

Appeal of NANCY MELE, on behalf of her children PAUL and DAVID, MARIE and WILLIAM ZMYNDAK, on behalf of their son IAN, ROSE-ELLEN and JAMES CUPO, on behalf of their son CHRISTOPHER, DEBRA PEPE, on behalf of her daughter MICHELE, EDWARD LOZADA, on behalf of his daughter BRITTANY, and MAXIMO PEGUERO, on behalf of his son MAXIMO, from action of the Board of Education of the Monroe-Woodbury Central School District regarding transportation.

Decision No. 17,260

(November 17, 2017)

Thomas J. Cione, Esq., attorney for petitioners

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Allison E. Smith, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the action of the Board of Education of the Monroe-Woodbury Central School District (“respondent”) in providing transportation to their children’s nonpublic school.  The appeal must be dismissed.

Petitioners reside within respondent’s school district.  According to the record, during the 2013-2014 school year, petitioners’ children attended John S. Burke Catholic High School (“Burke”), a nonpublic school located within 15 miles of petitioners’ residences.  By letter dated August 20, 2013, the district’s director of transportation (“director”) notified parents of students attending Burke that, in an effort to remain within the “confines of the new Property Tax Cap,” the district had changed its transportation plan regarding bus services offered to its resident students who attend Burke.  This change apparently eliminated direct busing from the students’ homes to Burke.  The director of transportation’s letter detailed that Burke students would ride school buses with public school students to the district’s high school and transfer to shuttle buses at the high school for transportation to Burke.  Parents were provided an option to bring their children to the high school to ride the shuttle to Burke, if they chose.  In the afternoon, all Burke students would be transported by bus to the Monroe Park and Ride where students would transfer to buses for transportation to their homes.  Parents were also provided an option to pick their children up at the Monroe Park and Ride, if they chose.  The director noted that the Monroe Park and Ride has been used safely for school transportation purposes in the past. 

After receiving comments from some of the parents of Burke students, the district modified the transportation plan and notified parents by letter dated September 4, 2013.  The modified plan provided that the shuttle bus would make additional stops before going to Burke.  The shuttle was scheduled to stop at 6:35 a.m. at Sacred Heart School, on its way to respondent’s high school, to pick up any students whose parents opted to drive them there.  The shuttle would then proceed to the high school to receive any students transferring there, then leave to go to Central Valley Elementary School as an additional pick-up point for students whose parents brought them there.  In the afternoon, the school bus from Burke would travel directly to the North Main Elementary School where two “smaller school vans” would pick up the Burke students for transportation to their homes.  This appeal ensued and petitioners’ request for interim relief was denied.

Petitioners seek transportation for their children directly from their homes to Burke, which they claim respondent provided in the prior school year.  Petitioners claim that respondent’s plan is unreasonable and inconvenient and that it has increased their children’s travel time from 20 minutes to 90 minutes.  Petitioners assert that respondent’s explanation that the transportation change resulted in economic benefits to the district did not sufficiently explain how the prior transportation plan caused an adverse economic impact.  Petitioners also argue that the change is “unfair” to Burke students because it treats them differently from other, similarly situated students attending public and non-public schools.  Petitioner claims that certain students from the Kiryas Joel community and students attending St. John’s Catholic Elementary School (“St. John’s”), as well as public school students, are bused directly to their schools from home.  Petitioners allege that the new transportation plan is detrimental in that it led to five students dropping out of Burke and that continuing the transportation policy will further negatively affect enrollment in Burke. 

Respondent asserts that the petition must be dismissed as untimely.  Respondent maintains that its transportation plan is within its discretion and is, in all respects, proper.

I must first address several procedural matters.  Respondent argues 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).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).  In this case, respondent sent a letter dated August 20, 2013, notifying parents of Burke students, including petitioners, of the changes to its transportation plan.  However, after receiving feedback from parents, respondent’s director subsequently significantly modified the transportation plan, adding additional stops and transfer locations for Burke students.  Petitioners were informed of the modified plan by letter dated September 4, 2013.  This appeal was served on October 3, 2013, within 30 days of the notice of the modified plan.  Therefore, I decline to dismiss petitioners' appeal as untimely.[1]

However, 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).  Petitioners’ request for interim relief was denied and the challenged plan involved transportation for the 2013-2014 school year, which has ended, rendering the matter academic. 

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). 

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).  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). A district’s use of a centralized transfer point, alone, does not violate Education Law §3635 (Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of Gorsky, 47 id. 162, Decision No. 15,658). In determining how transportation is to be provided in such cases, 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). 

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).

Petitioners assert that they were not provided with an explanation of the economic reasons for the change in transportation policy.  Respondent’s director has submitted a sworn affidavit explaining the basis for making the changes to the district’s transportation plan for Burke. The director claims that financial constraints brought on by the economy and the statutory property tax cap required restructuring of the district’s transportation plans -- including elimination of transportation staff, elimination or consolidation of bus routes, and changes to the duties of transportation staff and to district delivery services.  According to the director, the revised transportation plan eliminated six bus routes, including two to Burke, and resulted in significant savings in workforce and equipment.  Petitioners submit no reply or other evidence refuting such assertions or demonstrating otherwise.  Thus, respondent has demonstrated that it had a sound, non-discriminatory basis for altering the bus routes and transportation policy for Burke students, including petitioners’ children. 

Petitioners also argue that, for some of the students, the bus ride has expanded from 20 minutes to 90 minutes under the new transportation plan.  According to the director, the duration of the bus ride for students under the new plan ranges from 18-83 minutes.  The director asserts that some public school students’ bus rides are longer than those at issue here.  Petitioners have submitted no reply to refute respondent’s assertions.  In any case, previous Commissioner’s decisions have held that a 90 minute bus ride is not excessive (Appeal of Gorsky, 47 Ed Dept Rep 162, Decision No. 15,658; Appeal of Reich, 38 id. 565, Decision No. 14,094; Appeal of Lavin, 32 id. 249, Decision No. 12,821). 

Petitioners claim that respondent’s transportation plan is unfair because it treats Burke students differently from similarly situated public school students and certain other non-public school students who are bussed directly from their homes to school.  However, the mere fact that respondent may use a variety of means to transport children to and from their respective schools or that it has utilized a centralized transfer point does not necessarily demonstrate that students are receiving unequal treatment within the meaning of Education Law §3635 (Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of Gorsky, 47 id. 162, Decision No. 15,658; Appeal of McCarthy and Bacher, 42 id. 329, Decision No. 14,872).

In the instant appeal, respondent is utilizing its high school as a centralized transfer point, which, as noted above, does not, in and of itself, violate Education Law §3635 (Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of Gorsky, 47 id. 162, Decision No. 15,658).  The record indicates that respondent’s transportation plan does not require petitioners to transport their children to the high school or to either of the alternative locations offered for boarding the Burke shuttle.  Rather, if petitioners do not wish to transport their children to the high school or to avail themselves of respondent’s proposed alternative locations for boarding the Burke shuttle, respondent’s will continue to pick the students up at their bus stops and transport them to Burke via the high school transfer point.  Accordingly, I find that respondent is utilizing a central transfer point consistent with Education Law §3635 (see Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626).

To the extent that petitioners argue that other students attending non-public schools are bussed directly from home to school, as noted above, the mere fact that respondent may use a variety of means to transport children to and from their respective schools or that it has utilized a centralized transfer point does not necessarily demonstrate that students are receiving unequal treatment within the meaning of Education Law §3635 (Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of Gorsky, 47 id. 162, Decision No. 15,658; Appeal of McCarthy and Bacher, 42 id. 329, Decision No. 14,872). 

Finally, petitioners allege that the district’s transportation plan has caused five students to drop out of Burke and that continuation of this plan would adversely impact enrollment at Burke.  Petitioners' contentions are purely speculative and do not constitute allegations of harm to their childrens’ rights.  Moreover, petitioners have no standing to assert claims on behalf of a private school. 

Petitioners have not established that respondent’s transportation plan results in unequal treatment, is discriminatory or is otherwise improper (see Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of Gorsky, 47 id. 162, Decision No. 15,658).  Based on this record, I cannot conclude that respondent’s transportation plan for Burke students and the method of providing transportation to petitioners’ children is arbitrary, capricious, unreasonable or an abuse of discretion.

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

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] I note that petitioners claim in their verified petition that it was on September 9, 2013 that the district “changed its bus policy.”  However, petitioners submit no reply to address the issue of the discrepancy between the date alleged and the September 4, 2013 letter respondent submitted with its papers in opposition to petitioners’ stay request.  Having found the commencement of this appeal timely, I need not address this discrepancy.