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Decision No. 12,550

Appeal of DONNA FASSLER and RICHARD and CHAYA MERMELSTEIN from action of the Board of Education of the Clarkstown Central School District and Dr. John Krause, Superintendent, in connection with transportation.

Decision No. 12,550

(July 19, 1991)

Lexow, Berbit & Jason, Esqs., attorneys for respondents, Warren E. Berbit, Esq., of counsel

SOBOL, Commissioner.--Petitioners bring this appeal to criticize respondents' failure to enforce a prior decision with respect to the provision of transportation. The appeal must be dismissed.

In Matter of Mermelstein, Goldbard and Fassler (30 Ed Dept Rep 119), I determined that petitioners' children were not eligible for transportation to and from the Laurel Plains Elementary School. I made my decision both on grounds of untimely commencement of the appeal, and because petitioners live less than one mile from the school to which they sought transportation. The facts are recited in my previous decision and will not be repeated here.

During the month of September, 1990, prior to my decision, petitioners began complaining to respondents that other students in the district were receiving transportation to and from the Laurel Plains Elementary School although they, too, were ineligible because they, too, lived within one mile of the school. After my decision was rendered, it appears that petitioners and respondents became involved in an incident on October 10, 1990, at which time petitioners attempted to place their children on the school bus after the dismissal of classes that day despite my determination. Respondents summoned the police to prevent petitioners' action and to preserve order at the school.

On the following day, it appears that respondents' Director of Pupil Transportation obtained the names, addresses, and telephone numbers of the allegedly ineligible student bus riders about whom petitioners complained, and both telephoned their parents and mailed them notices as to their ineligibility.

Petitioners maintain that they are not seeking transportation for their own children in this appeal, but are seeking to have respondents enforce the district's transportation policy against all ineligible students equally. Respondents raise a number of procedural defenses, including untimeliness, and claim that this appeal is an attempt to relitigate the same matters determined in the first appeal.

It is unnecessary to discuss these claims at length because I find that the petition fails to state a claim upon which relief can be granted, and fails to contain a proper demand for relief in violation of 8 NYCRR '275.10. It is clear that petitioners' children are ineligible for transportation, and that petitioners have claimed that certain other children are also ineligible, but specific evidence of their ineligibility has not been provided. It is also clear that the district has made efforts to restrict transportation to those students who are eligible. The district, however, points out that each day it transports approximately 8,700 students to 68 schools (16 public and 52 non-public). Each day there are approximately 544 bus trips and 3,336 stops district-wide. The difficulties in enforcement, particularly where an ineligible student might have a choice of several bus routes which pass near his home, are obvious. It may not be possible to guarantee that no ineligible student ever rides a school bus.

Although petitioners feel that only they have been singled out for enforcement purposes, there is evidence in the record before me that the district is making a good-faith effort to enforce its transportation policy. To the extent that that has not been fully successful, I strongly urge the district to continue to use its best efforts to identify those students who are not eligible for transportation, and to restrict transportation to only those who are eligible. While I understand that this may entail a certain amount of effort and expense, it is essential that all district residents be treated equally, and that there not be an appearance of discriminatory enforcement.