Appeal of DANIEL KJAR, on behalf of S.K. and N.K., and FINN ACADEMY: AN ELMIRA CHARTER SCHOOL from action of the Board of Education of the City School District of the City of Elmira regarding transportation.

 

Decision No. 17,870

(July 6, 2020)

           Whiteman Osterman & Hanna LLP, attorneys for petitioners, Kevin P. Quinn, Esq., of counsel

           The Law Firm of Frank W. Miller, attorneys for respondent, Frank W. Miller, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioner Daniel Kjar (“petitioner Kjar”) appeals the determination of the Board of Education of the City School District of the City of Elmira (“respondent”) to deny his children transportation services to Finn Academy:  An Elmira Charter School (“petitioner Finn”), a charter school, for the 2019-2020 school year.  The appeal must be dismissed.

Petitioner Finn Academy: An Elmira Charter School (“Finn”) is a charter school located within respondent’s district that enrolls students in kindergarten through seventh grade.  Petitioner Kjar resides within respondent’s district, and his two children attend Finn.

On or about March 26, 2019, petitioner Kjar submitted a transportation request to respondent, seeking transportation for his children to and from Finn for the 2019-2020 school year.  Respondent currently provides Finn’s students who reside within its district with morning transportation to Finn, and such transportation is not at issue in this appeal.  However, respondent has never offered or provided afternoon transportation to Finn’s students.  According to respondent, such transportation is not provided because Finn’s dismissal time conflicts with respondent’s existing afternoon transportation schedule.  Specifically, respondent’s supervisor of transportation explains in an affidavit that:

[the district’s] afternoon transportation services are broken down into essentially two blocks of time.  Block number one, for elementary students, begins at approximately 2:00 p.m. and continues until approximately 3:05.  At 2:00 [the district] begin[s] to pick up students and ... by 3:05 p.m. all elementary school students are transported and delivered home.

The afternoon also has a separate block for secondary students.  These are students grade 7 through 12.  That process begins at 3:05 p.m. ... [and] is completed between approximately 4:30 and 5:00 p.m.  This process takes much longer as [the district has] secondary students from outlying areas who must be transported home ... in areas such as Chemung, New York, etc., which are part of the ... [d]istrict.

Finn’s dismissal time “range[s] from 3:05 to 3:15 p.m.”  The record reflects that the parties have reached an impasse as to whether Finn should, or is required to, adjust its dismissal time to facilitate afternoon transportation.

In an email to the supervisor of transportation dated April 8, 2019, petitioner Kjar indicated that he “ha[d] yet to hear from the [d]istrict regarding transportation” and asked for a determination on his March 26, 2019 request.  Petitioner Kjar further indicated that, if he did “not hear from [the district] by April 22, 2019,” he would “take [such failure to respond] as a denial of transportation” and commence an appeal to the Commissioner of Education.  Respondent’s director of administration (“director”) thereafter contacted petitioner Kjar “to assist” with his transportation request; however, petitioner Kjar asserts that the director “failed to inform [him] whether the [d]istrict would provide transportation.”

In a letter dated May 10, 2019 and sent to the district’s administrative offices, petitioner Kjar “follow[ed]-up on [his] previous correspondence” and indicated that his “transportation request remain[ed] unresolved.”  Petitioner Kjar requested that respondent “respond, in writing, indicating whether or not [it would] provide transportation ... [by] no later than Friday, May 24, 2019.”  Petitioner Kjar indicated that, if he did “not receive a written response from the [d]istrict” that “specifically answer[ed] [his] request,” he would consider this a constructive denial “and [would] appeal such a denial to the Commissioner.”

In an email to petitioner Kjar dated May 22, 2019, the director wrote:

The district has and will be providing AM transportation.  The district has offered to provide PM transportation.  At this time, the district is working with Finn ... on a potential solution to PM busing.

The director further stated:  “Please see the attached [l]etter to Finn.”  Although the parties do not identify the letter that was attached to the director’s May 22 email, petitioners submit a letter dated May 22, 2019, which was sent from respondent’s superintendent to Finn’s Chief Operations Officer (“COO”).  This letter “formally request[ed] that [Finn] discuss with [respondent] modifications of [its] end of the day dismissal time for the grades kindergarten through seventh grade.”  Specifically, the superintendent indicated that Finn’s current dismissal time did “not coincide with [respondent’s] transportation schedule” and that, if Finn were to change its dismissal time to “approximately 2:10 [p.m.],” the district “could accommodate” Finn’s students and provide afternoon transportation “without incurring undue burden.”  This appeal ensued.

Petitioners contend that respondent’s refusal to provide transportation to petitioner Kjar’s children was arbitrary and capricious.  Petitioners also assert that Finn’s dismissal time is reasonable and “not at variance with those of other nonpublic schools to which [r]espondent transports students.”  Petitioners seek an order determining that respondent’s refusal to provide petitioner Kjar’s children with afternoon transportation was arbitrary and capricious and requiring respondent to transport petitioner Kjar’s children for the 2019-2020 school year.

Respondent contends that the appeal must be dismissed, inter alia, as untimely.  Respondent further argues that Finn has unreasonably refused to negotiate its dismissal time, the sole issue preventing the parties from reaching an agreement on afternoon transportation.  Respondent additionally asserts that it would incur substantial cost if it were required to provide afternoon transportation to Finn’s students at the current dismissal time.

First, I must address the procedural issues.  Respondent moves to strike portions of petitioners’ reply.  The Commissioner’s regulations governing appeals pursuant to Education Law §310 do not contemplate motion practice (see Appeals of Alfano, et al., 39 Ed Dept Rep 229, Decision No. 14,224).  Nevertheless, the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent additionally contends that the appeal must be dismissed as untimely.  In its answer, respondent makes a general assertion that “[s]ome or all of the claims asserted by ... [p]etitioners are barred by the applicable statute of limitations.”  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).  With respect to petitioner Kjar, the record reflects, as indicated above, that he repeatedly sought a determination from respondent concerning his request for transportation but never received a definitive denial from respondent.  In this respect, I note that petitioners commenced the instant appeal within 30 days of both May 24, 2019, the date by which petitioner Kjar requested a final determination from respondent, and May 22, 2019, the date on which the director advised petitioner Kjar that the district was “working with Finn ... on a potential solution,” constituting respondent’s most recent correspondence concerning petitioner Kjar’s request.  Under these facts, I decline to dismiss the appeal as untimely with respect to petitioner Kjar.

With respect to petitioner Finn, the record contains a letter from its COO dated June 11, 2019, addressed to respondent’s superintendent, reflecting that Finn construed the superintendent’s May 22, 2019 letter offering a 2:10 p.m. dismissal time “as a denial of transportation to [students] attending Finn.”  As noted above, petitioners commenced this appeal within 30 days of May 22, 2019.  Respondent has the burden of proof to establish any affirmative defenses, and its conclusory statement that “[s]ome or all of the claims ... are barred by the applicable statute of limitations,” without proof, does not suffice (8 NYCRR §275.12[a]; see also Appeal of Kenton, 54 Ed Dept Rep, Decision No. 16,649; Application of Simmons, 53 id., Decision No. 16,596; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  Accordingly, I decline to dismiss the appeal as untimely with respect to petitioner Finn.

Nevertheless, the appeal must be dismissed with respect to petitioner Finn for lack of standing.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853). Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

A charter school is deemed a nonpublic school for purposes of transportation requests (Education Law §2853[4][b]; Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,676; Appeal of New Covenant Charter School, 41 id. 358, Decision No. 14,713; Appeal of New Covenant Charter School, 39 id. 610, Decision No. 14,327).  The Commissioner has previously held that a principal of a nonpublic school has no legal interest in whether the school's students are provided with transportation and may not maintain an action based on alleged injuries to the students (Appeal of Lucente, 39 Ed Dept Rep 244, Decision No. 14,227).  Similarly, the Commissioner has determined that a charter school lacks standing to appeal a school district’s transportation determination absent a showing that the district’s actions caused legal injury to the charter school or its property (Appeal of International Charter School of Schenectady, 43 Ed Dept Rep 408, Decision No. 15,034; Appeal of Lucente, 39 id. 244, Decision No. 14,227 [with respect to principal of nonpublic school]).  Rather, the principal of a nonpublic school may only establish standing to challenge a school district’s transportation determination upon demonstrating that the district’s failure to provide transportation caused legal injury to the principal personally or infringed upon the rights of the nonpublic school

Prior to Appeal of International Charter School of Schenectady, the Commissioner entertained two appeals brought by a charter school from transportation determinations by a public school district.  Those appeals are distinguishable, however, insofar as the decisions did not address standing and the charter school that was the petitioner in those appeals alleged specific injuries resulting from the district’s decisions (see Appeal of New Covenant Charter School, 41 Ed Dept Rep 358, Decision No. 14,713 [charter school alleged school district should accept untimely transportation requests because charter school had been unable to enroll new students while it was subject to an enrollment cap as part of a remedial action plan under Education Law §2855(3)]; Appeal of New Covenant Charter School, 39 id. 610, Decision No. 14,327 [charter school alleged school district improperly deducted transportation costs from funds owed to charter school pursuant to Education Law §2856]).

Here, petitioners’ sole request for relief is for an order adjudicating the right of petitioner Kjar’s children to receive transportation to Finn.  Although the petition describes petitioner Finn’s efforts to secure transportation on its students’ behalf, petitioners do not allege that respondent’s actions have caused Finn or its property any specific legal injury, nor do petitioners seek any relief on Finn’s behalf.  Accordingly, I find that petitioner Finn lacks standing to maintain this appeal (Appeal of International Charter School of Schenectady, 43 Ed Dept Rep 408, Decision No. 15,034).

With respect to petitioner Kjar, the appeal must be dismissed as moot.  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).  Petitioner Kjar challenges respondent’s denial of his transportation request for the 2019-2020 school year.  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]).  The 2019-2020 school year has ended; therefore, the issue of transportation with respect to petitioner Kjar’s children is moot (see Education Law §3635[2]; Appeal of Garazha, 55 Ed Dept Rep, Decision No. 16,833; Appeal of Milliman-Estus, 52 id., Decision No. 16,394).

Although the appeal must be dismissed, I am nevertheless compelled to comment on respondent’s provision of transportation in this matter.  The Education Law does not require a board of education to transport children attending nonpublic school in all circumstances (Appeal of a Student with a Disability, 55 Ed Dept Rep, Decision No. 16,394).[1]  Authorities at public and nonpublic schools are obligated to cooperate in a reasonable manner in the scheduling of classes and transportation (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of Salvia, 36 id. 365, Decision No. 13,750; Appeal of Frasier, 35 id. 499, Decision No. 13,612).  Public school authorities may not dictate the opening or closing hours for a nonpublic school, but the adoption of unreasonable or erratic schedules relieves public school authorities of the responsibility for arranging to meet those schedules.  Even if students may be required to remain for academic courses, public school authorities are not required to provide transportation arrangements beyond what is reasonable (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of Salvia, 36 id. 365, Decision No. 13,750; Matter of Berger, 22 id. 443, Decision No. 11,028).

In determining reasonableness, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of Donn, 49 Ed Dept Rep 187, Decision No. 15,994; Appeal of Reilly, 46 id. 184, Decision No. 15,479; Appeal of Del Prete, 40 id. 148, Decision No. 14,444).  Although a board of education may not be influenced by economic considerations to the point of failing to provide transportation which is reasonable (Appeal of Frasier, 35 Ed Dept Rep 499, Decision No. 13,612), considerations of economy cannot be ignored (Appeal of Donn, 49 Ed Dept Rep 187, Decision No. 15,994; Appeal of Post, 33 id. 151, Decision No. 13,006; Appeal of Stickley, 27 id. 328, Decision No. 11,963).

Consistent with these principles, I remind respondent that, in appeals where the opening and/or closing times of nonpublic schools were not unreasonable or widely at variance with the public school schedule, the Commissioner has concluded that transportation “must be provided in such a manner that the students arrive on time for the beginning of school and are not picked up until the end of their school day” (Appeal of Osgood, 25 Ed Dept Rep 274, Decision No. 11,577; see Matter of Tyo, et al., 20 id. 384, Decision No. 10,450).

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

THE APPEAL IS DISMISSED.

END OF FILE