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Decision No. 12,621

Appeal of TAMMIE BOYLE from action of the Board of Education of the Spencerport Central School District relating to transportation between school and a child care location.

Decision No. 12,621

(December 30, 1991)

Mousaw, Vigdor, Reeves, Heilbronner & Kroll, Esqs., attorneys for petitioner, Daniel R. Mooney, Esq., of counsel

Elliott, Stern and Calabrese, Esqs., attorneys for respondent, Richard J. Elliott, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's denial of permission to allow the Churchville-Chili Central School District to transport petitioner's daughter between a child care location in the Churchville-Chili district and a nonpublic kindergarten program located in a third school district. Petitioner requests an order directing respondent to allow the Churchville-Chili Central School District to provide transportation for her child. The appeal must be dismissed.

Petitioner, a resident of respondent's district, contacted the Director of Transportation for the Churchville-Chili Central School District and inquired as to whether that district would transport petitioner's daughter from her babysitter's residence located in the Churchville-Chili district to a nonpublic school in the Gates-Chili Central School District. The Director of Transportation indicated the district's willingness to provide the requested transportation services in a letter to the Spencerport Director of Transportation, provided that Spencerport request that Churchville-Chili do so. Concurrent with contacting the Churchville-Chili school district, petitioner wrote to the superintendent of schools of Spencerport, requesting respondent to consent to having the Churchville-Chili school district transport petitioner's child. By letter dated April 1, 1991, respondent denied petitioner's request based on its policy #5705, and indicated that it would provide transportation services to the nonpublic school consistent with said policy. Policy #5705 primarily summarizes Education Law '3635(1), which was amended in 1986, effective July 1, 1987, to allow boards of education to provide transportation between school and before-and/or-after-school child care locations. Petitioner commenced this appeal on April 24, 1991.

As an affirmative defense to the charges in the petition, respondent asserts that subsequent to its decision to deny petitioner's request, it received notice from the Churchville-Chili district that the Churchville-Chili district was reversing its prior position and would not provide the requested transportation services, irrespective of whether respondent consented to such an arrangement. In light of such change, respondent claims that the appeal is moot.

The Commissioner will decide only matters in actual controversy and will not render a decision based upon a state of facts which no longer exists, or which subsequent events have laid to rest (Appeal of Scribani, 30 Ed Dept Rep 164; Appeal of Becker, 29 id. 419; Appeal of Vachon, 28 id. 276). In light of the fact that the Churchville-Chili school district has indicated that it will not provide the requested transportation even if respondent consents to this arrangement, this appeal is academic and must be dismissed.

With respect to the merits of this appeal, there is no authority for a school district to transport non-resident students between child care locations in its district and nonpublic schools outside of its district. Petitioner is concededly a resident of the Spencerport, not the Churchville-Chili, school district and therefore, the Churchville-Chili school district properly reversed its position by declining to provide the requested transportation services. Respondent's policy #5705 is consistent with Education Law '3635(1)(e) which provides in relevant part:

In lieu of the transportation provided pursuant to the foregoing provisions of this subdivision, a board of education may, at its discretion, provide transportation to any child attending grades kindergarten through eight between the school such child legally attends and before-and/or-after-school child care locations. For the purposes of this subdivision, a before-and/or-after-school child care location shall mean 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...

The fact that Churchville-Chili transports other children from the babysitter's residence, including the sitter's child, is irrelevant, in that the sitter's child is presumably a resident of the Churchville-Chili school district and, therefore, may properly request transportation services to a nonpublic school consistent with the distance policy established by Education Law '3635.