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Decision No. 17,443

Appeal of T.A., on behalf of her daughter Z.A., from action of the Board of Education of the Mamaroneck Union Free School District regarding transportation.

Decision No. 17,443

(July 16, 2018)

Ingerman Smith, L.L.P., attorneys for respondent, Emily J. Lucas, Esq., of counsel

Elia, Commissioner.--Petitioner appeals a determination of the Board of Education of the Mamaroneck Union Free School District (“respondent”) denying her daughter (“the student”) transportation for the 2014-2015 school year.  The appeal must be dismissed.

At all times relevant to this appeal, petitioner and the student resided within respondent’s district and the student attended a nonpublic Catholic school for girls (the “nonpublic school”). 

Respondent’s policy 8412 governs transportation within the district.  This policy generally provides that students in grades 9 through 12 who live more than three but less than 15 miles from their school are eligible for transportation by, depending on the circumstances, private carrier (yellow bus) or public carrier (bus or train).  Specifically, eligible high school students will be offered public transportation if two conditions exist: (1) the student’s total walking distance (one way) between home and the public carrier, and the public carrier and the school, is less than three miles; and (2) the student can reasonably be expected to travel to school and home “within 1.5 hours each way” while “requiring no more than one transfer per day.”  High school students who do not meet the above criteria shall be transported by yellow bus.

The record further reveals that, in or about August 2014, respondent adopted policy 8412-R, which further elaborates upon policy 8412 in such areas as how distances are measured, what kinds of public transportation may be made available to students, and student eligibility for vacant seats on school buses.

At some point, petitioner requested that respondent provide transportation for the student to and from the nonpublic school for the 2014-2015 school year.  This request was denied by respondent’s assistant superintendent for business operations (“assistant superintendent”).  Petitioner appealed this determination to the superintendent, who upheld the assistant superintendent’s decision and stated that the district had “identified a public carrier route that meets the Regulations under Policy #8412.”  Petitioner thereafter appealed this determination to respondent.  In a letter dated October 8, 2014, the district clerk wrote on behalf of respondent that petitioner’s request had been “tabled ... in order to present [petitioner] with an alternat[ive] route” for the student.  The letter indicated that petitioner would have until October 10, 2014 to consider whether she would accept the alternate route and withdraw her appeal.

In a letter dated October 14, 2014, respondent indicated that it had voted to uphold the superintendent’s determination.  This appeal ensued. 

Although not entirely clear, petitioner appears to argue that respondent erred by offering public transportation instead of yellow school bus transportation under the circumstances because the distance between her home and the nonpublic school is “just over the three mile mark.”  Petitioner asserts that the route selected by respondent included a “vehicle transfer,” and that “[p]ublic bus transportation in Westchester in non-cities is spotty at best ....”    Petitioner further argues that respondent’s new policy (i.e., policy 8412-R) has the effect of requiring students to transfer between buses or trains.  Petitioner additionally contends that policy 8412-R has a disparate impact on students attending girls schools and Catholic schools.  Petitioner requests yellow bus transportation for the student from her home to the nonpublic school and further requests that I direct respondent to revise policy 8412-R.

Respondent contends that the appeal must be dismissed as moot due to certain events which transpired after it was filed.  Respondent further argues that petitioner’s claims regarding gender and religious discrimination are not within the Commissioner’s jurisdiction in an appeal pursuant to Education Law §310.  Finally, respondent contends that its determination was neither arbitrary nor capricious and that petitioner has not shown a clear legal right to transportation under the language of policy 8412.

First, I must address the procedural matters.  In her reply, petitioner objects to respondent’s answer as untimely.  Section 275.13(a) of the Commissioner’s regulations requires that an answer be served within 20 days of service of the petition.  Here, the petition was served on December 1, 2014; thus, the answer was due to be served on December 21, 2014.  While petitioner is correct that the answer was served 21 days after personal service of the petition, the last day for timely service of the answer, December 21, 2014, was a Sunday.  Section 275.8(b) of the Commissioner’s regulations provides that “[i]f the last day for service of any pleading or paper ... falls on a Saturday or a Sunday, service may be made on the following Monday” (8 NYCRR §275.8[b]).  Thus, it was permissible for respondent to serve the answer on Monday, December 22, 2014.

Petitioner also objects to respondent’s memorandum of law as untimely because it was not served within 20 days after service of the reply.  Section 276.4(a) of the Commissioner’s regulations requires that a respondent serve a memorandum of law within 30 days of service of the answer or 20 days after service of the reply, whichever is later.  Affording the usual five days for mailing of the reply, excluding Sundays and holidays, respondent’s memorandum of law was due on Thursday, January 29, 2015 (see e.g. Appeal of Murphy, 57 Ed Dept Rep, Decision No. 17,234).  Respondent’s service of the memorandum of law on January 29, 2015, then, was timely. 

Petitioner also objects to the scope of respondent’s memorandum of law.  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 Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799).  Therefore, respondent’s memorandum of law has been considered accordingly.

Next, 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 Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  To the extent petitioner seeks to assert the rights of other students within respondent’s district, petitioner lacks standing to assert the rights of others, including students other than her 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).

Respondent raises mootness as an affirmative defense.  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).  Initially, respondent argues that the appeal is moot because, after the commencement of this appeal, it remeasured the distance between petitioner’s home and the nonpublic school and concluded that the distance was less than three miles.  Consequently, respondent argues, petitioner no longer has a right to any form of transportation to the nonpublic school under policy 8412.  Respondent has the burden of establishing its affirmative defense (see Application of Simmons, 53 Ed Dept Rep, Decision No. 16,596; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  However, on this record respondent has offered no proof in support of its contention and I therefore decline to dismiss the appeal as moot on this basis. 

Nevertheless, I agree with respondent that the appeal is moot insofar as the record indicates that petitioner challenges respondent’s denial of her request for transportation for the 2014-2015 school year.  Transportation to a nonpublic school must be requested on a yearly basis and no later than the first day of April preceding the next school year (Education Law §3635[2]).  Therefore, the issue of transportation for the 2014-2015 school year is moot and no relief may be granted in connection with this school year (see Education Law §3635[2]; Appeal of Garazha, 55 Ed Dept Rep, Decision No. 16,833; Appeal of Milliman-Estus, 52 id., Decision No. 16,394).

Moreover, to the extent petitioner asserts that policy 8412-R amounts to unconstitutional sex or religious discrimination and seeks an order directing the district to revise such policy, such claims must be dismissed.  An appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).  Also, to the extent petitioner claims that the alleged “disparate impact” violates the federal Civil Rights Act of 1964, I note that an appeal to the Commissioner pursuant to Education Law §310 is not an appropriate forum to adjudicate claims under the Civil Rights Act of 1964 (Appeal of Nicholaou-Guirguis, 32 Ed Dept Rep 439, Decision No. 12,879). 

Even if the appeal were not dismissed for the reasons described above, it would be dismissed on the merits.  A school district must provide transportation for all children attending grades kindergarten through eight who live between 2 and 15 miles from school and for all children attending grades 9 through 12 who live between 3 and 15 miles from school, the distances in each case being measured by the nearest available route from home to school (Education Law §3635[1][a]; Appeal of Schwab, 47 Ed Dept Rep 73, Decision No. 15,630; Appeal of Bittlingmaier, 45 id. 213, Decision No. 15,305).  Transportation for a lesser or greater distance than that set forth in statute may only be provided upon approval by the voters of the district (Education Law §3635[1][a]; Appeal of Bittlingmaier, 45 Ed Dept Rep 213, Decision No. 15,305; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073).  If such transportation is provided, it must be offered equally to all students in like circumstances residing in the district (Education Law §3635[1][a]; Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636).

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).

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).

     Here, petitioner has failed to meet her burden of proving that the student was entitled to yellow bus transportation for the 2014-2015 school year.  First, although the petition is not entirely clear, to the extent petitioner intends argue that the student is entitled to yellow bus transportation because she resides more than three miles from the nonpublic school, petitioner provides no evidence to support her claim in this regard other than her conclusory assertion.  Therefore, she has not carried her burden of proof with respect to this claim.

Moreover, even assuming, arguendo, that petitioner carried her burden of establishing that she resides more than three miles from the school, under policy 8412, respondent could provide either yellow bus or public transportation to the student under such circumstances.  In addition, other than alleging that policy 8412-R has discriminatory effects and requires transfers, petitioner has failed to demonstrate how the student would be entitled to yellow bus transportation, rather than public transportation, under the language of policy 8412 and 8412-R. 

It is well-settled that a board of education may provide passes for transportation on public transit facilities where transportation between home and school can be provided in that manner (Appeal of Clancy, 37 Ed Dept Rep 280, Decision No. 13,859; Appeal of Lavin, 32 id. 249, Decision No. 12,821).  The fact that a transfer from one public transit facility to another is required to practically effectuate student transportation does not invalidate a district’s transportation plan (Appeal of Landy, 54 Ed Dept Rep, Decision No. 16,664; Appeal of Clancy, 37 id. 280, Decision No. 13,859; Appeal of Lavin, 32 id. 249, Decision No. 12,821).

Accordingly, on this record, I cannot conclude that respondent acted arbitrarily, capriciously or unreasonably in offering public transportation instead of yellow bus transportation to the student for the 2014-2015 school year.

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

THE APPEAL IS DISMISSED.

END OF FILE