Decision No. 17,987
Appeal of GIANNA DESENA FAMOLARI, on behalf of her daughter, from action of the Board of Education of the Northport-East Northport Union Free School District regarding transportation.
Decision No. 17,987
(May 3, 2021)
Ingerman Smith LLP, attorneys for respondent, Michael D. Raniere, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Northport-East Northport Union Free School District (“respondent”) to deny her daughter (“the student”) school bus transportation. The appeal must be dismissed.
At all times relevant to this appeal, the student attended sixth grade at one of respondent’s middle schools (the “middle school”). In an email to respondent’s transportation department dated September 9, 2020, petitioner requested information regarding the student’s busing arrangements for the 2020-2021 school year.
By email dated September 10, 2020, the transportation department indicated that the student was ineligible for transportation because, according to board policy, only those middle school students who reside one or more miles from the school they attend are eligible to receive transportation; the record reflects that petitioner and the student reside less than one mile from the middle school. Petitioner responded by email dated September 10, 2020, asserting that, although the student lives within one mile of the middle school, the student’s route to the middle school “has no sidewalks, is very highly trafficked and extremely dangerous for anyone to attempt to walk – especially a child.” Petitioner requested that these conditions be considered in determining the student’s eligibility for transportation.
By email dated September 10, 2020, respondent’s transportation supervisor advised petitioner that the district was compelled to follow “specific guidelines for transportation.” The transportation supervisor further indicated that “the only way” the district could provide transportation outside “the mileage requirement” would be if “a Child Safety Zone Study [were] completed and [it met] specific criteria.” Accordingly, the transportation supervisor provided petitioner with information regarding the process for “petitioning for a Child Safety Zone study.” This appeal ensued. Petitioner’s request for interim relief was denied on October 1, 2020.
Petitioner does not contest that she and the student live less than one mile from the middle school, but she contends that the student’s “walking route is extremely dangerous.” Specifically, petitioner asserts that the road along which the student must walk has no sidewalk, minimal shoulder length, and a high volume of cars that often exceed the speed limit. Petitioner requests a determination that the student is entitled to transportation to and from the middle school.
Respondent argues that the student is not entitled to receive transportation because she and petitioner live less than one mile from the middle school. Respondent further asserts that petitioner has not requested a child safety zone study, which might permit respondent to transport the student irrespective of distance.
A school district must provide transportation for all children attending kindergarten through grade 8 who live between 2 and 15 miles from school, as well as all children attending grades 9 through 12 who live between 3 and 15 miles from school, with the distance measured by the shortest available route between the child’s home and school (Education Law § 3635  [a]; Appeal of Lachman, 56 Ed Dept Rep, Decision No. 17,039; Appeal of Schwab, 47 id. 73, Decision No. 15,630). A school district may provide transportation for a lesser or greater distance only upon approval by the voters of the district (Education Law § 3635  [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, the district must offer it equally to all children in like circumstances who reside within the district (Education Law § 3635  [a]; Appeal of Lachman, 56 Ed Dept Rep, Decision No. 17,039).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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). With specific respect to transportation, the Commissioner 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).
On this record, petitioner has failed to meet her burden of proving that the student is entitled to receive transportation. Petitioner concedes that the student is not eligible for transportation pursuant to respondent’s policy but argues that, when determining eligibility for transportation, respondent should consider hazards along the student’s route to school. New York courts have rejected such arguments, stating that Education Law § 3635 does not impose upon school districts “any obligation to consider the relative hazards in the paths of different children” (Pratt v Robinson, 39 NY2d 554, 559 ). Rather, “the legislative yardstick is distance which is, objectively, readily ascertainable, and not hazard which involves a myriad of factors” (Matter of Studley v Allen, 24 AD2d 678 [3d Dept 1965] [internal quotation marks omitted]; see Hanley v East Moriches Union Free School Dist. II, 275 AD2d 389, 390 [2d Dept 2000] [“It is well settled that a school district’s duty to provide ... school transportation does not require that it prevent a child from encountering traffic hazards”], lv denied 95 NY2d 769 ).
Thus, for those students ineligible to receive transportation by virtue of distance, “it is the responsibility of their parents to provide for their safe arrival at school” (Appeal of Ruescher, 50 Ed Dept Rep, Decision No. 16,245; Appeal of Flemming, 43 id. 391, Decision No. 15,028). Prior decisions of the Commissioner assessing hazards along a student’s transportation route are distinguishable insofar as they involved a school district’s discretion to designate pick-up points for students eligible to receive transportation based on distance (e.g. Appeal of A.G., 59 Ed Dept Rep, Decision No. 17,804) or a locally authorized procedure for requesting transportation based on hazardous conditions (e.g. Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306). Accordingly, I have no basis to conclude that the student’s allegedly hazardous route provides a legal entitlement to transportation in excess of Education Law § 3635 and respondent’s policy.
Although Education Law § 3635-b permits school districts to establish child safety zones to provide transportation based on hazardous conditions to all students similarly situated, there is no evidence in this record that petitioner has requested, or respondent has established, a child safety zone applicable to petitioner’s situation. Therefore, this statutory procedure does not provide a basis for relief (Appeal of Ruescher, 50 Ed Dept Rep, Decision No. 16,245).
Although I am sympathetic to petitioner’s concerns, which she has generally corroborated by submitting photographs of the road in question, there is no legal basis to grant petitioner the relief she requests (see Pratt v Robinson, 39 NY2d 554, 559 ; Matter of Studley v Allen, 24 AD2d 678 [3d Dept 1965]). I note, however, that petitioner remains entitled to submit a petition requiring respondent to conduct an investigation to determine whether a hazardous zone exists requiring the establishment of a child safety zone (Education law § 3635-b ).
THE APPEAL IS DISMISSED.
END OF FILE
 Respondent’s policy 8410 provides that “[t]he qualified voters of the ... [d]istrict have approved” transportation for “all middle school pupils who reside more than 1 mile from school of attendance.”
 Education Law § 3635-b (4) permits a parent to submit a petition, signed by 25 voters of the district or five percent of the number of voters who voted in the last district election, whichever is greater, to require the board of education to conduct “an investigation to determine whether a hazardous zone exists requiring the establishment of a child safety zone.”