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Decision No. 17,706

Appeal of MONICA JUGUET, on behalf of her daughter INES, from action of the Board of Education of the Northport-East Northport Union Free School District regarding transportation.

Decision No. 17,706

(July 23, 2019)

Ingerman Smith, LLP, attorneys for respondent, Michael D. Raniere, Esq., of counsel

ELIA., Commissioner.--Petitioner appeals the decision of the Northport-East Northport Union Free School District (“respondent”), to deny her daughter (“the student”) transportation to a nonpublic school during the 2018-2019 school year.  The appeal must be dismissed.

This appeal was commenced in the 2018-2019 school year, during which petitioner and the student resided within respondent’s district and the student attended high school at the Portledge School (“Portledge”), a nonpublic school located in Locust Valley.

According to petitioner, on April 3, 2018, she was notified that her daughter had received a scholarship to Portledge and she “immediately requested transportation.”  Petitioner states that with her request, she provided a copy of Google Maps which indicated that the distance between her home and the school was 14.97 miles.

By letter dated June 26, 2018, respondent’s transportation supervisor denied petitioner’s request for transportation stating that according to its “mapping program,” the distance from petitioner’s home to Portledge was more than fifteen miles and that:

[t]ransportation is only provided to students over 15 miles from the school when another student in the district, who meets the mileage requirement, is being provided transportation to the school.

By letter dated July 9, 2018, petitioner appealed the denial to respondent’s assistant superintendent for business (“assistant superintendent”).  On July 19, 2018, petitioner was contacted by respondent’s superintendent for business, who invited petitioner to accompany the bus driver and transportation supervisor on a bus ride during which the distance between petitioner’s home and Portledge would be measured by a calibrated odometer, the NuMetrics NiteStar Distance Measuring Instrument (“DMI”).  The bus ride occurred on August 2, 2018, and according to respondent, the DMI produced a reported distance of 15.07 miles.  The record does not include any communication of the determination to petitioner, but it appears that her request for transportation was denied.

By letter dated August 8, 2018, petitioner appealed to respondent’s superintendent.  On August 22, 2018, the superintendent notified petitioner by phone that he upheld the determination denying petitioner’s request for transportation.  By letter dated August 23, 2018, petitioner appealed to respondent. On September 4, 2018, the superintendent notified petitioner by phone that respondent upheld the denial of transportation.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 11, 2018.

Petitioner contends that the student is eligible for transportation to Portledge because she and the student live less than fifteen miles from the school.  Petitioner requests a determination that the student is entitled to transportation between her home and Portledge for the next four years.

Respondent argues that the appeal must be dismissed for lack of proper verification, for failure to state a claim and because the student is not entitled to transportation.

I will first address the 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

Respondent alleges that the petition lacks proper verification.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of D.P., 46 id. 516, Decision No. 15,580).  The petition filed with my Office of Counsel includes an affidavit of verification; however, it is not signed by petitioner as required by 8 NYCRR §275.5(a).[1]  Therefore, the petition is not properly verified, and the appeal must be dismissed.

Moreover, to the extent the petition seeks transportation for the 2018-2019 school year, the appeal is also 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Petitioner challenges respondent’s denial of her transportation request for the 2018-2019 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]).  Since the 2018-2019 school year has ended, the appeal is moot (see Education Law §3635[2]; Appeal of Destrat, 58 Ed Dept Rep, Decision No 17,533; Appeal of Garazha, 55 id., Decision No. 16,833; Appeal of Milliman-Estus, 52 id., Decision No. 16,394).

Further, to the extent that petitioner is seeking transportation for the student beyond the 2018-2019 school year, the appeal must be dismissed as premature.  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 He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899).

Even if the appeal were 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 Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of S.T., 48 id. 389, Decision No. 15,894; Appeal of Hughes, 48 id. 299, Decision No. 15,865).  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 Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of Bittlingmaier, 45 id. 213, Decision No. 15,305; Appeal of Heffernan, 43 id. 447, Decision No. 15,046).

Additionally, transportation may also be furnished for certain other pupils attending a nonpublic school in accordance with Education Law §3635(1)(b)(i).  A school district providing transportation to a nonpublic school for pupils living within the specified distances from such school must designate one or more public schools as centralized pick-up points, and must provide transportation between such pick-up points and such nonpublic school for pupils residing too far from the nonpublic school to qualify for regular transportation between home and school.  The statute 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 Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of S.T., 48 id. 389, Decision No. 15,894; Appeal of Hughes, 48 id. 299, Decision No. 15,865).

Education Law §3635(1)(b)(ii) further states that a board of education "may, at its discretion," provide transportation from a centralized pick-up point for pupils residing within the district to a nonpublic school located more than 15 miles from the home of any such pupil, provided that transportation has been provided to the nonpublic school in at least one of the immediately preceding three school years (Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of S.T., 48 id. 389, Decision No. 15,894; Appeal of Hughes, 48 id. 299, Decision No. 15,865).  When a school district exercises its discretion to provide transportation pursuant to Education Law §3635(1)(b)(ii), the statute requires that the distance from the centralized pick-up point to the nonpublic school must not be more than 15 miles (Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of Bittlingmaier, 45 id. 213, Decision No. 15,305; Appeal of Turner, 40 id. 156, Decision No. 14,447).

A school district has broad discretion in selecting measurement points on school property for purposes of determining eligibility for transportation (Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of Welch, 48 id. 176, Decision No. 15,829).  It may measure transportation distances from any part of the school or a resident’s property, so long as it does so fairly and consistently (Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of Welch, 48 id. 176, Decision No. 15,829; Appeal of Flemming, 43 id. 391, Decision No. 15,028).  Commissioner's decisions have upheld measurements using a variety of reference points, such as a corner of the school property (Appeal of Canossa, et al., 37 Ed Dept Rep 456, Decision No. 13,904), a side entrance of the school (Appeal of Mermelstein, et al., 30 Ed Dept Rep 119, Decision No. 12,406), the point at which the child first comes in contact with the grounds of the school he or she attends (Appeal of Pavony, et al., 27 Ed Dept Rep 295, Decision No. 11,951), a point at the entrance gate to the school grounds (Matter of Feldblum, 4 Ed Dept Rep 156, Decision No. 7499) and the mid-point of the school (Matters of Silbert, et al. and Fitzpatrick, 1 Ed Dept Rep 283, Decision No. 6607).  Furthermore, there is nothing improper about a district using multiple entrances as a means to measure distance, provided a uniform policy is adopted (Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636; Matters of Silbert, et al. and Fitzpatrick, 1 id. 283, Decision No. 6607).

A board of education is neither required to expend an unreasonable amount of time, effort or money in measuring distances for the purpose of determining eligibility for transportation, nor make such measurements with the accuracy of a professional survey (Appeal of Chaim and Mintz, 57 Ed Dept Rep, Decision No. 17,257; Appeal of Welch, 48 id. 176, Decision No. 15,829; Appeal of Schwab, 47 id. 73, Decision No. 15,630).  It is reasonable and sufficient to use an automobile odometer to measure distance to determine eligibility (Appeal of Chaim and Mintz, 57 Ed Dept Rep, Decision No. 17,257; Appeal of Schlick, 40 id. 207, Decision No. 14,462; Appeal of Adamitis, 38 id. 765, Decision No. 14,137).

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

On this record, petitioner has not established that respondent’s denial of her request for transportation was arbitrary, capricious, unreasonable or an abuse of discretion.

Petitioner contends that she lives less than fifteen miles from Portledge.  As proof of her claim, petitioner submits a Transfinder system report generated by respondent which indicates that the distance between her home and Portledge is 15.01 miles.  Included in report is a note that states “[h]ard [r]ight [o]n [d]riveway [g]o 0.16 mi.”  Petitioner argues that the Transfinder report should not include the .16 miles of driveway, and therefore, the distance between her house and Portledge is actually only 14.94 miles.  She also submits a printout from Google Maps which indicates that the driving distance between her address and Portledge is 24.1 kilometers, or 14.97505 miles.  Finally, she submits what appear to be three screenshots from a mobile device.  Petitioner asserts that these screen shots are from Strava, a GPS tracking phone application.[2]  Petitioner further asserts that she used Strava on three different occasions and that on all three, the measured distance between her house and Portledge was reported as less than 15 miles.

Respondent submits an affidavit from its assistant superintendent who indicates that it is the district’s practice to use its Transfinder system to determine the distance between a student’s home and his/her school.  The assistant superintendent states that, because the Transfinder system reported the distance between petitioner’s home and Portledge as 15.1 miles, “so close to 15 miles,” in accordance with its practices, the district then used a calibrated odometer to calculate the distance.  On June 13 and 26, 2018 and August 2, 2018, the district measured the distance between the front of petitioner’s house and the first corner entrance to Portledge using its DMI – an instrument attached the bus’s transmission output shaft and to the computer on the bus which takes into account tire size – and the DMI produced reported distances of 15.03, 15.05, and 15.07 miles, respectively.

Establishing transportation routes and measuring distances is within the discretion of a board of education.  Therefore, I do not find petitioner’s alternative means of measurement, such as Google Maps and/or Strava, dispositive.  Respondent’s use of the DMI, or calibrated odometer when Transfinder measurements are “so close” to fifteen miles is reasonable.  Petitioner makes no allegations that respondent has applied this practice unfairly or inconsistently.  Furthermore, although petitioner “question[s] the accuracy of the bus odometer reading” and alleges that the district used inconsistent measurement points (specifically that on June 13 and 26, 2018 respondent measured from “[d]oor to [d]riveway” and that on August 2, 2018 respondent measured from “[d]oor to [d]oor”), she submits no proof to support her allegations.  Moreover, petitioner has neither alleged nor proven that the student was entitled to transportation from a centralized pick-up point.  Accordingly, I am unable to conclude that respondent’s transportation determination was arbitrary, capricious, unreasonable or an abuse of discretion.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] It appears that the verification filed with the petition was signed by the notary public who notarized the affidavit of service.

 

[2] A review of the Strava website (https://strava.com/mobile) indicates that Strava is an application for tracking running and cycling distances.  I note that petitioner’s screenshots include a bicycle icon on the date and time stamp for each trip, presumably indicating that Strava was on the cycling setting.