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Decision No. 17,757

Appeal of PAUL KENNEY, on behalf of his son, JACK KENNEY, from action of the Board of Education of the Malverne Union Free School District regarding transportation.

Decision No. 17,757

(September 25, 2019)

Frazer & Feldman, LLP, attorneys for respondent, Peter G. Albert, Esq., of counsel

BERLIN., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Malverne Union Free School District (“respondent”) denying his son (“the student”) transportation to a nonpublic school.  The appeal must be dismissed.

On or about January 29, 2018, petitioner, a resident of respondent’s district, requested transportation on behalf of the student to Xavier High School, a nonpublic school, for the 2018-2019 school year.  Respondent’s transportation policy dictates, in relevant part, that respondent provides transportation to students attending nonpublic schools if they reside “not more than 15 miles from the school they legally attend.”

By letter dated January 29, 2018, respondent’s assistant superintendent for district operations denied petitioner’s request for transportation on the basis that the distance between Xavier High School and petitioner’s home was 21.5 miles.  By letter dated March 6, 2018, petitioner appealed the assistant superintendent’s decision to respondent.  Respondent denied petitioner’s appeal by letter dated May 9, 2018.  This appeal ensued.

Petitioner asserts that respondent’s denial of transportation for the student to the nonpublic school violates Education Law §3635.  Specifically, petitioner contends that, under the statute, a student is entitled to transportation “up to 15 miles,” without regard to the distance between such student’s home and the nonpublic school that he or she attends.  Petitioner further avers that “other children in the district attending high school in New York City” have received transportation in the past.  Petitioner seeks an order that the student “be granted transportation reimbursement to Xavier High School up to 15 miles ....”

Respondent contends that the petition is untimely and that petitioner fails to establish facts sufficient to support his claim for relief.  Respondent additionally asserts that it has not provided transportation to any student attending a nonpublic school more than 15 miles from such student’s home since the 2016-2017 school year.

First, 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  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 G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

Here, respondent rendered its determination by letter dated May 9, 2019.  The record does not contain evidence as to when petitioner actually received the determination.  Therefore, affording the usual five days for mailing, petitioner had until June 14, 2019 to commence this appeal.  Petitioner commenced this appeal by personal service of the petition on June 19, 2018.  Petitioner admits in the petition that respondent’s determination was made by letter dated May 9, 2019 but does not, as required, set forth good cause for the delay in serving the petition (8 NYCRR §275.16).[1]  Therefore, the appeal must be dismissed as untimely.

Even if the appeal were not untimely, 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).

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).

Petitioner contends that Education Law §3635 requires a school district to provide transportation for “up to 15 miles,” irrespective of the distance from a student’s home to the school which he or she legally attends.  Petitioner thus avers that, although he and the student reside more than 15 miles from Xavier High School, respondent must provide transportation for the first 15 miles of the student’s commute.  Petitioner’s interpretation of the statute is incorrect.  The 15-mile limit established by Education Law §3635 has consistently been applied as a threshold to determine whether a student is entitled to receive transportation, not an amount of transportation to which a student is entitled even if the distance between the student’s home and the school which he or she legally attends exceeds 15 miles (see e.g. Appeal of Juguet, 59 Ed Dept Rep, Decision No. 17,706; Appeal of Lang, 58 id., Decision No. 17,503; Appeal of Students with Disabilities, 51 id., Decision No. 16,341; see generally Matter of Toye, 2 id. 58, Decision No. 6,946).  Therefore, petitioner’s claim is without merit.

Additionally, although petitioner asserts that respondent has provided transportation “to other children ... attending high school in New York City,” he does not allege that respondent has provided transportation to any student attending Xavier High School.  Respondent affirmatively asserts that “the [d]istrict’s voters have not approved transportation for children who live more than the statutorily prescribed distances from the schools they attend”; that the district does not utilize centralized pick-up points to provide transportation to nonpublic schools; and that the district has not transported any students to Xavier High School in the past three years.  Petitioner thus fails to establish that his son is eligible to receive transportation pursuant to Education Law §3635(1)(b)(ii).

Petitioner also suggests that other students within the district may have received transportation inconsistent with the statutory limitations or board policy.  Petitioner submits no evidence in support of this claim and, thus, has failed to meet his burden of proof.  However, even assuming, arguendo, that respondent provided transportation inconsistent with Education Law §3635 or board policy, the fact that a district transported a student in prior years does not estop the district from declining to provide such transportation (Appeal of Lachman, 56 Ed Dept Rep, Decision No. 17,039; Appeal of Rohde, 45 id. 255, Decision No. 15,313; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073).  Moreover, a district has no authority to make an exception to the eligibility requirement of Education Law §3635 merely because it erroneously provided transportation to a student in the past (Appeal of Lachman, 56 Ed Dept Rep, Decision No. 17,039; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073).  If a board of education is providing transportation for a pupil who is not legally entitled to it, the solution is to discontinue such transportation (Appeal of Lachman, 56 Ed Dept Rep, Decision No. 17,039; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073; Appeal of Turner, 40 id. 156, Decision No. 14,447).

Therefore, because petitioner has not established that the student is entitled to transportation under any provision of Education Law §3635 or board policy, I am unable to conclude that respondent’s determination to deny petitioner’s application for transportation was arbitrary, capricious, unreasonable, or an abuse of discretion.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Petitioner previously sent a copy of the petition via overnight mail to the district on June 12, 2018.  Upon receipt of such submission, by letter dated June 14, 2018, my Office of Counsel returned the petition to petitioner because it lacked an affidavit of personal service as required by 8 NYCRR §275.9.