Decision No. 18,174
Appeal of K.P., on behalf of her child, from action of the Board of Education of the Sachem Central School District regarding transportation.
Decision No. 18,174
(August 18, 2022)
Law Office of Nicole D. Venditti, P.C., attorneys for petitioner, Nicole D. Venditti, Esq., of counsel
Ingerman Smith LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Board Education of the Sachem Central School District (“respondent”) to deny her child (“the student”) transportation to an afterschool respite program. The appeal must be dismissed.
Petitioner applied for transportation for the student to an afterschool respite program located outside of the district on July 12, 2021. Respondent’s executive director for special education denied this request on July 14, 2021. Subsequent appeals to the superintendent and board were denied. This appeal ensued. Petitioner’s request for interim relief was denied on September 30, 2021.
Petitioner argues that the student is entitled to transportation to the respite program because two other district residents receive such transportation. She seeks a determination that the student is entitled to transportation to the respite program.
Respondent contends that Education Law § 3635 does not require it to provide transportation to childcare providers located outside of its district. Respondent further argues that the two students who currently receive transportation to the respite program receive such transportation as a required service in their individualized education programs (“IEP”).
Education Law § 3635 (1) (e) authorizes a board of education, in its discretion, to offer transportation to and from “before-and/or-after-school child care locations” under certain circumstances. For purposes of Education Law § 3635 (1) (e), a “before-and/or-after-school child care location” is defined as “a place, other than the child’s home, where care for less than twenty-four hours a day is provided on a regular basis for a child who attends school within the school district provided that such place is situated within the school district.” Thus, Education Law § 3635 (1) (e) authorizes a school district to transport a child to a childcare provider only if both the school that the child attends and the childcare provider are located within the district (Appeal of Kern, 60 Ed Dept Rep, Decision No. 17,961; Appeal of Milliman-Estus, 52 id., Decision No. 16,394; Appeal of Wells, 49 id. 443, Decision No. 16,076).
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). 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).
The afterschool respite program in question is located outside of the boundaries of respondent’s district. Thus, respondent was not authorized to transport the student to the program under Education Law § 3635 (1) (e) (Appeal of Kern, 60 Ed Dept Rep, Decision No. 17,961; Appeal of Milliman-Estus, 52 id., Decision No. 16,394; Appeal of Wells, 49 id. 443, Decision No. 16,076).
Additionally, petitioner has not met her burden of proving that respondent arbitrarily offers transportation to some district residents but not others. The record reflects that respondent transports two resident students to the respite program because it is required by their IEPs. Petitioner does not assert that the student’s IEP contains such a requirement. As such, respondent has articulated a rational basis for determining which students are entitled to the requested transportation.
While petitioner’s appeal under Education Law § 310 must be dismissed, the student may be entitled to the requested transportation under the Individuals with Disabilities Education Act (IDEA) (Application of the Bd. of Educ., Decision No. 13-152, available at https://www.sro.nysed.gov/common/sro/files/Decisions/2013/pdfversion/13-152.pdf [denial of transportation to afterschool respite program denied student an equal opportunity to participate in extracurricular activities]). Any such request should be made to respondent’s Committee on Special Education (“CSE”).
THE APPEAL IS DISMISSED.
END OF FILE
 In any event, 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 Wells, 49 Ed Dept Rep 443, Decision No. 16,076; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073; Appeal of Robert G., 32 id. 60, Decision No. 12,758).
 As the Commissioner has recognized, Education law § 3635 is not the sole source of entitlement to transportation (see Appeal of Neubauer, 32 Ed Dept Rep 320, Decision No. 12,841 [students who receive transportation from boards of cooperative educational services or pursuant to Education Law §§ 2045  or 4402 not in “like circumstances” to students receiving transportation pursuant to Education Law § 3635]).