Appeal of J.R., on behalf of her son M.R., from action of the Board of Education of the Massapequa Union Free School District regarding transportation.

Decision No. 17,814

February 10, 2020

Law Offices of Guercio & Guercio, LLP, attorneys for respondent, Gregory A. Gillen, Esq., of counsel

Tahoe, Interim Commissioner.--Petitioner challenges the determination of the Board of Education of the Massapequa Union Free School District (“respondent”) that her son (the “student”) is not eligible to receive transportation.  The appeal must be dismissed.

Respondent’s policy 8410, entitled Student Transportation, identifies the circumstances under which respondent provides transportation to district residents.  As relevant here, students in grades 10-12 are eligible for transportation if they reside more than 1.5 miles from the high school that they attend.

Petitioner’s son is a tenth grade student in respondent’s district.  In July 2019, the district’s transportation department generated bus passes for all students who were eligible to receive transportation from the district for the 2019-2020 school year.  Board policy 8410 provides that students in grades 10-12 only receive transportation if they reside at least 1.5 miles from their school.   Pursuant to the district’s mileage calculation, which was conducted using software identified as Transfinder, petitioner was determined to reside 1.487 miles from the school, less than the 1.5 miles threshold which would make him eligible for district transportation.  Accordingly, in August 2019, respondent informed petitioner that the student was ineligible for transportation because petitioner resided less than 1.5 miles from his high school, and a bus pass was not issued to him.  Petitioner was advised by the transportation office that she could request a mileage recalculation in accordance with board policy 8410-R.  Petitioner requested, and respondent performed, a recalculation of travel mileage.  This secondary mileage check calculated the distance from petitioner’s home to the student’s school to be 1.483 miles and on August 23, 2019, petitioner was notified by email that the student was not eligible for transportation.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 1, 2019.

Petitioner contends that she and the student live greater than 1.5 miles from the high school the student attends; consequently, petitioner argues that the student is entitled to transportation to and from school pursuant to board policy 8410.  Petitioner also asserts that she has received no proof of the calculation used by respondent and that the route is unsafe for the student to walk.  Petitioner seeks a determination that the student is entitled to receive transportation for the 2019-2020 school year.

Respondent contends that its determination was rational and should not be disturbed.  Respondent contends that it accurately ascertained the distance between petitioner’s home and the school the student attends using Transfinder and then performed a recalculation of the route using a district vehicle which has a NU Metrics NITESTAR Model NS-60 DMI (the “NITESTAR”) route calculation device installed therein.

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 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. 7,499) and the mid-point of the school (Matters of Silbert, et al. and Fitzpatrick, 1 Ed Dept Rep 283, Decision No. 6,607).  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. 6,607).

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 Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). 

On this record, petitioner has failed to meet her burden of proving that respondent’s determination was arbitrary or capricious.   As indicated above, and pursuant to board policy 8410, students in grades 10-12 only receive transportation if they reside at least 1.5 miles from their school.  In support of petitioner’s contention that she resides over 1.5 miles from the student’s school, petitioner asserts that she drove the route described by respondent and attaches screenshots from a mobile device indicating that the distance between her home and the student’s school is more than 1.5 miles.  Petitioner also utilized an application called “MapMyWalk” and attaches a screenshot purportedly demonstrating that the distance between her home and the student’s school is 1.55 miles. 

Respondent first used its Transfinder system to calculate the route from the petitioner’s home to the student’s school, which resulted in a calculation of 1.487 miles. Respondent explains that when a mileage recalculation is requested, the district’s deputy superintendent performs the recalculation by measuring the distance from the requesting student’s residence to the student’s school of attendance using a district vehicle that has a NITESTAR system installed in the vehicle.  In so doing, the deputy superintendent uses the nearest available public route between the requesting student’s residence and his or her school of attendance.  He then uses the NITESTAR in the district vehicle to measure the distance in the center of the public route perpendicular to the furthest point of the requesting student’s dwelling, which for the district is always the farthest point of the property line, so as to give the greatest possible benefit to the student.  The deputy superintendent then measures along the center line of the shortest available public route suitable for motor vehicles, to the point perpendicular to the flagpole inside the bus driveway of the student’s school of attendance. 

Here, the deputy superintendent indicates that he conducted the recalculation for petitioner by himself in accordance with respondent’s policy 8410-R on or about August 22, 2019 and that the distance was calculated as 1.483 miles.   Further, respondent submits proof that the NITESTAR was recalibrated in April 2019.  On this record, petitioner has not shown that respondent’s use of Transfinder or the NITESTAR system and its resultant calculations were arbitrary or capricious (see Appeal of Juguet, 59 Ed Dept Rep, Decision No. 17,706).  I do not find that petitioner’s alternative means of measurement – including her own driving of the route in question and information obtained from internet sources or applications – compel a contrary conclusion (see e.g. Appeal of Gallent, 59 Ed Dept Rep, Decision No. 17,751; Appeal of Juguet, 59 id., Decision No. 17,706; Appeal of Yavno, 55 id., Decision No. 16,884).

Petitioner also argues that respondent’s determination was arbitrary or capricious because neighbors who live at a nearby address “received bus passes while attending Massapequa High School.”  Respondent explains in an affidavit that the neighbors received bus passes because the distance between the neighbors’ home and the school they attend is 1.502 miles.  Petitioner did not submit a reply or otherwise respond to this assertion.  Therefore, respondent did not act in an arbitrary or capricious manner in deciding to give the neighbors bus passes. 

Petitioner further complains that respondent did not provide her with “proof” to support its distance calculation.  However, petitioner has not identified any law, regulation, or policy requiring respondent to generate, or provide her with, documentation concerning its distance calculation.  In this respect, I note that respondent correctly apprised petitioner that, if she desired such information and to the extent it existed, she could submit a request pursuant to the Freedom of Information Law (“FOIL”), Public Officers Law Article 87.  To the extent that petitioner seeks to appeal any denial of a FOIL determination by respondent, section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of H.A., 57 Ed Dept Rep, Decision No. 17,215; Appeal of Olka, 48 id. 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

Finally, petitioner states that if the student is required to walk to school, any walking route would be unsafe.  Although I am sympathetic to petitioner’s concerns, other than her conclusory and speculative assertions that a walking route would be unsafe, the record is devoid of evidence that the district’s transportation determination was arbitrary, capricious, unreasonable or an abuse of discretion.  Therefore, on this record, petitioner has not met her burden of proving that respondent’s denial of her request for transportation was arbitrary or capricious, unreasonable or an abuse of discretion.

THE APPEAL IS DISMISSED.

END OF FILE