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Decision No. 17,745

Appeal of JOSEPH RADANO, on behalf of his sons ROBERT and ALEXANDER, from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding transportation.

Decision No. 17,745

(August 27, 2019)

Ingerman Smith, LLP, attorneys for petitioner, David F. Kwee, Esq., of counsel.

ELIA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”) to deny his sons, Robert and Alexander (“the students”), transportation to Hewlett Elementary School for the 2019-2020 school year.  The appeal must be dismissed.

The students will be attending second grade at Hewlett Elementary School in September 2019.  By letter dated April 11, 2019, the district’s transportation coordinator determined that the students were ineligible for transportation for the 2019-2020 school year “based upon the distance” between the students’ home and Hewlett Elementary School.  The letter stated that the distance from a designated point at the school to the dwelling had been calculated using a “specially calibrated odometer” and measured 0.48 miles.  According to respondent’s transportation policy, and pursuant to voter authorization, all children in kindergarten through third grade who live one-half mile or more from the school they attend are entitled to transportation.  This appeal ensued.

Petitioner challenges the accuracy of respondent’s distance measurement and the point from which the route was measured and asserts that he will endure hardship from respondent’s determination and need to retain the services of a private bussing company.  Petitioner also asserts that when he measures the distance between the school and his residence using an internet-based map, the distance is one half-mile, thus entitling the students to transportation.  Petitioner seeks a determination that the students are entitled to transportation for the 2019-2020 school year.

Respondent asserts that its distance measurement is accurate, reasonable and consistent with the district’s administrative regulations and policies.  Respondent maintains that petitioner has not established a clear legal right to transportation.

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 Lachman, 56 Ed Dept Rep, Decision No. 17,039; Appeal of Schwab, 47 id. 73, Decision No. 15,630).  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 Lachman, 56 Ed Dept Rep, Decision No. 17,039; Appeal of Bittlingmaier, 45 id. 213, Decision No. 15,305).  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 Lachman, 56 Ed Dept Rep, Decision No. 17,039).

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).

Further, 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).

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).

Respondent states that initial determinations on the distance between a student’s home and school are made by the district’s transportation office using school bus routing software called Transfinder.  An affidavit from the business administrator states that, according to Transfinder, petitioner resides 0.464 miles from Hewlett Elementary School.  The affidavit further states that a calibrated odometer reading is taken when Transfinder indicates that a resident may be found ineligible for transportation services and when requested by a resident, and that the same district vehicle, installed with a specially calibrated odometer is used to determine every official measurement to maintain uniformity.  Pursuant to respondent’s administrative regulation §8410, “distances are measured from a point of the curb opposite the front door of the child's dwelling to one designated point at the curb at each school.”  The business administrator states that he measured the distance between petitioner's home and Hewlett Elementary School using the calibrated odometer and the above described procedure, and that the distance measured 0.48 miles.[1]

Upon review of the record, petitioner has not established that respondent’s methodology for measuring distance is inaccurate or unreasonable.  Petitioner submits a Google Maps distance calculation as evidence that the distance between Hewlett Elementary School and his residence is .5 miles, but he has failed to explain why such map should be substituted for respondent’s calculation using its method – a specially calibrated odometer in an official vehicle - or why respondent’s use of the Transfinder calculation and its attendant route is arbitrary, capricious or unreasonable (Appeal of K.M., 58 Ed Dept, Decision No. 17,499; Appeal of Xiang, 56 id., Decision No. 16,925; Appeal of Yavno, 55 id., Decision No. 16,884).

Petitioner contends that the distance from his home to Hewlett Elementary School is “at the threshold” of where the district provides transportation for students and, thus, asks that respondent transport the students as an equitable matter.  Boards of education, however, lack the authority to transport students who are ineligible for transportation (see e.g. Appeal of E.K., 51 Ed Dept, Decision No. 16,345; Appeal of Ruescher, 50 id., Decision No. 16,245; Appeal of Hinkley, 37 id. 431, Decision No. 13,897).

Lastly, petitioner argues that his household will “endure hardship” should the district not provide the students transportation, asserting that he will have to “retain [the] services of a private bussing company for the daily trip to school.”  Although I am sympathetic to petitioner's concerns, hardship or inconvenience do not constitute a legal basis for entitlement to transportation (see e.g. Appeal of E.K., 51 Ed Dept, Decision No. 16,345, Appeal of Wells, 49 id. 443, Decision No. 16,076; Appeal of Goldstein, 40 id. 159, Decision No. 14,448).

On this record, petitioner has not established any facts demonstrating that respondent acted in an arbitrary or capricious manner in measuring the distance between his residence and Hewlett Elementary School, or that respondent has not applied its transportation policy in a fair and consistent manner.

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

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Petitioner challenged the “calibrations/accuracy and any margin of error” of this odometer reading procedure.  The business administrator avers that even though the vehicle’s odometer had last been calibrated in 2012, in his view, the reliability of the vehicle’s calibration has not been “compromised” because the vehicle had only been driven 6,620 miles since this calibration.