Appeal of M.P., on behalf of his daughter K.B.P., from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding transportation.

Decision No. 17,848

(June 10, 2020)

Law Offices of Thomas M. Volz, PLLC, attorneys for respondent, Anthony S. DeLuca, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioner challenges the determination of the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”) that his daughter (the “student”) is not eligible to receive transportation to a nonpublic school.  The appeal must be dismissed.

Respondent’s policy 8410 identifies the circumstances under which respondent provides transportation to district residents.  Respondent’s voters have authorized transportation in excess of the minimum requirements imposed by Education Law §3635(1)(a).  As relevant here, students in grades 9-12 are eligible for transportation if they reside more than 1.5 miles from the school that they attend.  Petitioner’s daughter attended ninth grade at a nonpublic school at the time of the events relevant to this appeal.

On September 30, 2019, the district denied petitioner’s request for transportation because the distance from his residence to the nonpublic school was less than 1.5 miles.  Pursuant to the district’s mileage calculation, which was conducted using a district automobile that contains a calibrated odometer, petitioner was determined to reside 1.41 miles from the school, less than the 1.5 miles threshold which would make her eligible for district transportation.  Accordingly, on September 30, 2019, respondent denied petitioner’s request and informed him that the student was ineligible for transportation because they resided less than 1.5 miles from her high school.

On or about October 31, 2019, respondent had the odometer in the vehicle recalibrated and measured the route in question a second time.  This secondary mileage check calculated the distance from petitioner’s home to the student’s school to be 1.45 miles.  This appeal ensued.

Petitioner contends that he and the student live more than 1.5 miles from the school the student attends; consequently, petitioner argues that the student is entitled to transportation to and from the school pursuant to board policy.  Petitioner also asserts that the route is unsafe for the student to walk because of high traffic intersections she would have to traverse.  Additionally, petitioner asserts that the student is diagnosed with an anxiety disorder that makes it difficult for her to walk alone to her school.  In support of this contention, petitioner submits a letter from the student’s treating doctor that requests the student receive transportation to and from her school due to an anxiety disorder.  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 on two different occasions using a calibrated odometer installed in the district’s vehicle exclusively for the purpose of taking these measurements.

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 has broad discretion to determine how transportation is to be provided (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891).  In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  Moreover, a board of education has both the responsibility and the authority to decide difficult questions in balancing the overall efficiency and economy of a transportation system against the convenience of individual students (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891).

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 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 failed to meet his burden of proving that respondent’s determination was arbitrary or capricious.  As indicated above, pursuant to board policy 8410, students in grades 9-12 are entitled to transportation only if they reside at least 1.5 miles from their school.  In support of petitioner’s contention that he and the student reside more than 1.5 miles from the student’s school, petitioner submits screenshots from the online application Mapquest which portrays the distance between the student’s residence and the student’s school as 1.68 miles.

As indicated above, on or about September 30, 2019, respondent used the district vehicle equipped with the odometer to calculate the route from petitioner’s home to the student’s school.  According to an affidavit from respondent’s business administrator, this distance was calculated to be 1.41 miles.  Respondent also conducted a second calculation on or about October 31, 2019, after the subject odometer was serviced and re-calibrated.  This resulted in a measurement of 1.45 miles.  When picking the route to measure, the business administrator states that he started from the curb opposite the front door of petitioner’s residence to a point at the curb of the driveway entrance to the subject school.  The school business administrator attests that the measurements taken by the official odometer followed the measurement points required by the district’s policy.

On this record, petitioner has not shown that respondent’s use of its district vehicle and odometer, the choice of route to be measured, or the resultant calculations were arbitrary or capricious.  I do not find that petitioner’s alternative means of measurement – information obtained from the internet application Mapquest – compels 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 further argues that the student should receive transportation due to an anxiety disorder.  As indicated above, petitioner has provided a letter from the student’s treating doctor in which he indicates that the student has generalized anxiety and experiences academic difficulties.  The doctor recommends that the student be provided with transportation to and from school because she should not be “allowed to walk alone for extended periods of time.”  This claim must be dismissed as premature.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861).  Respondent indicates that, pursuant to board policy, it permits a parent of a student “who believes that temporary special transportation services may be required” to “apply for such service on an application form prescribed by the District.”  There is no evidence that petitioner has submitted such a request.  Therefore, petitioner’s allegations concerning an alleged denial of his request for temporary special transportation services must be denied as premature.  If petitioner submits such a request and is denied, he may appeal any final decision of respondent pursuant to Education Law §310.

Moreover, to the extent petitioner claims that the student qualifies for special transportation under, for example, the Individuals with Disabilities Education Act (“IDEA”), Section 504 of the Rehabilitation Act of 1973 (“Section 504”) or the Americans with Disabilities Act (“ADA”), these claims are outside the jurisdiction of the Commissioner of Education in an appeal pursuant to Education Law §310 (Appeal of a Student Suspected of Having a Disability, 59 Ed Dept Rep, Decision No. 17,810 [IDEA]; Appeal of a Student with a Disability, 59 id., Decision No. 17,806 [Section 504]; Appeal of Ghezzi, et al. and Farr, 55 id., Decision No. 16,890 [ADA]).

Additionally, petitioner expresses concern about the safety of the route the student would be required to walk to school.  Petitioner describes it as unsafe for pedestrians due to heavy traffic at some of the intersections.  Although I am sympathetic to petitioner’s concerns, other than his conclusory and speculative assertions that the 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 (Appeal of J.R., 59 Ed Dept Rep, Decision No. 17,814).

Finally, petitioner asserts that his work schedule and the domestic responsibilities of the student’s mother make it difficult to drive the student to her school if petitioner’s instant appeal were to be denied.  Although I am sympathetic to petitioner’s concerns, hardship or inconvenience does not constitute a legal basis for entitlement to transportation (see e.g. Appeal of Radano, 59 Ed Dept Rep, Decision No. 17,745; Appeal of E.K., 51 id., Decision No. 16,345, Appeal of Wells, 49 id. 443, Decision No. 16,076; Appeal of Goldstein, 40 id. 159, Decision No. 14,448).

Therefore, on this record, petitioner has not met his burden of proving that respondent’s denial of his request for transportation was arbitrary or capricious, unreasonable or an abuse of discretion.

THE APPEAL IS DISMISSED.

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