Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the City School District of the City of Long Beach regarding transportation.

Decision No. 17,761

(October 7, 2019)

Frazer & Feldman, LLP, attorneys for respondent, Joseph P. Lilly, Esq., of counsel.

BERLIN., Interim Commissioner.--Petitioner appeals a decision of the Board of Education of the City School District of the City of Long Beach denying her son (“the student”) transportation to a nonpublic school for the 2018-2019 school year.  The appeal must be dismissed.

During the 2017-2018 school year, the student attended Holy Trinity High School (“HTHS”), a nonpublic school.  Respondent provided transportation between the student’s home and HTHS during this school year.

In fall 2017, a district resident advised respondent’s assistant superintendent for finance and operations (“assistant superintendent”) that several students, including petitioner’s son, were being provided with transportation to HTHS in excess of the 15 mile distance limitation.[1]  The assistant superintendent thereafter calculated the distance between each of the students’ homes and HTHS.  Some students, including petitioner’s son, were determined to live further than 15 miles from HTHS; other students continued to be eligible for transportation because the distance between their residences and HTHS was less than 15 miles.

In letters sent on May 31, 2018 and June 7, 2018, the assistant superintendent informed petitioner — along with other potentially impacted families — that respondent would finalize their decision regarding changes to transportation services at an upcoming meeting, including eligibility for nonpublic school students who live more than 15 miles from their school.

At a board meeting held on July 2, 2018, respondent authorized the creation of two centralized pick-up points to transport those students who attended HTHS and lived more than 15 miles from HTHS.  In an undated letter following the July 2, 2018 meeting, the assistant superintendent informed petitioner of respondent’s decision.  This appeal ensued.

Petitioner claims that the changes to the student’s transportation services – specifically, the elimination of the “local pick-up stations” and the creation of centralized pick-up points – will be unsafe and disruptive to the student’s routine.  Petitioner requests that the district “apply the same discretion it has applied to transportation to other ‘out of district/beyond 15 miles’ school addresses” and to return to the transportation arrangement it utilized during the 2017-2018 school year.

Respondent argues that it acted within its discretion in establishing the centralized pick-up points in question.  Respondent further claims that petitioner has produced no proof that the centralized pick-up points would be unsafe or would disrupt the student’s routine.  Respondent additionally argues that there is no merit to petitioner’s claim that the district may continue to provide unauthorized transportation to the student because it did so in the past.  Respondent also asserts that it is outside of the Commissioner’s jurisdiction to address IDEA claims.

First, the appeal must be dismissed as moot.  Petitioner contests the transportation services offered by respondent for the 2018-2019 school year, which has ended.  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).  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).

However, even if the appeal were not dismissed as moot, 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).

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).

Initially, petitioner does not dispute that the distance between her home and HTHS is greater than 15 miles.  Respondent asserts that its voters have not authorized transportation beyond the 15-mile limitation.  Therefore, the student was not eligible for transportation to and from HTHS by virtue of the distance between HTHS and his home.  To the extent petitioner suggests that respondent can or should provide such transportation even though it is not authorized to do so, 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).[2]  Thus, the only transportation to HTHS which petitioner’s son may have been entitled is via a centralized pick-up point, the establishment of which, as noted above, is within a board’s discretion (Education Law §3635[1][b][ii]).

Although petitioner complains that the elimination of local pick-up points and the creation of centralized pick-up points would be unsafe for the student, petitioner has submitted no proof in support of this contention.  Petitioner merely states that the centralized pick-up points “will be unsafe (particularly in inclement weather, and during the seasonal reduced daylight months) ....”  Assuming without deciding that such considerations are germane to respondent’s obligations regarding transportation (see Appeal of Lavin, 32 Ed Dept Rep 249, Decision No. 12,821, citing Matter of Studley v. Allen, 24 AD2d 678), such generalized statements do not demonstrate that the centralized pick-up points are dangerous.

Petitioner also contends that a change in pick-up points would interfere with the student’s “routine” and affect his academic progress.  Petitioner also states that the student has “certain learning disabilities” and receives services through an individualized education plan.[3]  Although not entirely clear, to the extent petitioner alleges that the student requires or was denied special transportation under State law, these claims must be addressed through the due process provisions of Education Law §4404; such claims may not be addressed in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,956; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232).

For all the above reasons, petitioner has not met her burden of proving that respondent’s provision of transportation to HTHS via a centralized pick-up point was arbitrary, capricious, unreasonable or an abuse of discretion.

THE APPEAL IS DISMISSED.

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