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Decision No. 12,661

Appeal of STEWART J. McMILLAN, on behalf of his son Quentin McMillan, from action of the Board of Education of the Mamaroneck Union Free School District relating to transportation.

Decision No. 12,661

(March 5, 1992)

Campbell, McMillan, Bosco, Penzel, Danzig & Maker, Esqs., attorneys for petitioner, Joseph D. DeSalvo, Esq., of counsel

Plunkett & Jaffe, P.C., attorneys for respondent, Adele K. Waine, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's decision to deny transportation to his son because he resides less than two miles from the nonpublic school he attends. The appeal must be dismissed.

Petitioner's son is a fourth grade student at Sts. John and Paul School, a nonpublic school . Respondent Board of Education of the Mamaroneck Union Free School District (the "district") transported petitioner's son between home and school during the 1988-89, 1989-90, and 1990-91 school years.

On November 26, 1990, the district purchased a computerized measuring instrument, a Roadstar 20, to be used to measure distances for determining transportation eligibility. The district's Transportation Coordinator calibrated the device upon purchase. As part of the eligibility reevaluation of all students, on December 27, 1990, the district's Transportation Coordinator measured the shortest available route between the driveway of petitioner's residence closest to the school and the nearest accessible entrance to the school, which is the standard route used by the district to measure. That distance was 1.932 miles, or 10,201 feet. On January 7, 1991, the district's Supervisor of Transportation advised petitioner that, because the distance between his home and the school was under two miles, his son was ineligible for transportation during the 1991-92 school year.

To assure that the measurement was accurate, the calibration of the Roadstar 20 was checked by a speedometer technician and found to be accurate on January 22, 1991. On February 19, 1991, the district's Supervisor of Transportation remeasured the distance between petitioner's driveway and the steps of the school, using the shortest route, and found it to be 1.929 miles or 10,185 feet.

On April 4, 1991, the district's Supervisor of Transportation advised petitioner that his application for transportation had been denied. On May 1, 1991, petitioner appealed to respondent board. On June 6, 1991, the board advised petitioner that it was upholding the district's determination. Petitioner commenced this appeal on July 1, 1991.

Before reviewing the merits, it is necessary to address a procedural issue. In petitioner's reply, he contends that the district remeasured the distances between home and school for private school students but did not remeasure for public school students. This is a new issue, first raised by petitioner in the reply. Sections 275.3 and 275.14 of the Regulations of the Commissioner of Education, which set forth the scope of a reply in a Commissioner's appeal, permit the reply to respond only to affirmative defenses or to new material raised in an answer. The reply, however, does not provide an opportunity to raise new issues (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 258). Because the claim that private school students were treated differently from public school students does not respond to an affirmative defense or new material raised in respondent board's answer, it is not properly before me and will not be considered.

However, even if the issue were properly before me, petitioner has not established that only private school students were affected. On August 21, 1990, the district advised petitioner that the eligibility of a number of nonpublic school students was in question, but did not state that it would remeasure the distances for nonpublic school students only. The district's Supervisor of Transportation states that the distance between petitioner's home and Sts. John and Paul School was remeasured as part of the eligibility reevaluation of all students. In addition, even if petitioner had established that some public school students were improperly receiving transportation because they were not reevaluated, this would not entitle petitioner to transportation for his son. If a school district is providing transportation for pupils who are not entitled to it, the solution is to discontinue such transportation and not to compound the error and illegally transport additional pupils (Matter of Lembo,, 18 Ed Dept Rep 505; Appeal of Eberhardt, 25 id. 263).

Education Law '3635(1)(a) provides:

. . . transportation shall be provided for all children attending grades kindergarten through eight who live more than two miles from the school which they legally attend . . . , the distances in each case being measured by the nearest available route from home to school.

The board of education of a central or union free school district may provide transportation for a lesser distance than that required by statute only with the approval of district voters (Appeal of Hannan, 28 Ed Dept Rep 456). In this case, the district's voters did not authorize respondent board to decrease the two-mile distance requirement for students in grades kindergarten through eight. Therefore, following Education Law '3635(1)(a), the district provides transportation to all students in grades kindergarten through eight who live more than two miles from their school.

Petitioner contends that the distance between his residence and the Sts. John and Paul School is greater than two miles and that only by violating the Vehicle and Traffic Law could the district have measured the distance to be less than two miles. Petitioner contends that even if the district's measurements are accurate, denying transportation due to a minimal distance shortfall on the basis of measurements computed by a new measuring device is arbitrary and capricious, especially when transportation had previously been provided. Petitioner contends that transportation should be provided because denying it after having provided it for three years has created an undue family hardship. A school district is not constrained to expend a great deal of time, effort, and money in measuring distances for transportation purposes, nor is it required to measure with the accuracy of a survey (Appeal of Rosenberg and Lederman, 14 Ed Dept Rep 333). However, in this case, the district did expend considerable time, effort, and money to ensure that its measurements were accurate. The district purchased a measurement instrument, a Roadstar 20, which is computerized, automatically calibrated and has an automatic error correction feature. To assure accuracy, the district twice measured the distance between petitioner's home and school. The measuring instrument was calibrated by the district's Transportation Coordinator before the first measurement and by a professional technician who certified its accuracy before the second measurement. In each case, the district found the distance between petitioner's home and Sts. John and Paul School to be less than two miles.

Petitioner bases his belief that the distance between his home and Sts. John and Paul School exceeds two miles on readings from the odometer in his family vehicle and on the reports he received from unnamed individuals who also took readings from the odometers in their vehicles. However, petitioner is silent concerning whether or how the vehicles driven by him or the unnamed parties had been calibrated; the routes taken; the points at his home or at the school from which and to which he or they had driven; and the exact mileage which he has determined to be the distance between his home and Sts. John and Paul School. Petitioner does not substantiate the claim that the district must have violated the Vehicle and Traffic Law when measuring the distance between his home and the school. In appeals to the Commissioner, it is the burden of the petitioner to establish the facts upon which his claim for relief is founded (Appeal of Negrin, 29 Ed Dept Rep 484). Petitioner has not established that the distance between his home and the school exceeds two miles.

That petitioner's son received transportation erroneously in three previous years is not a basis for continuing such transportation, notwithstanding that the error was found after using a new measuring device. A board of education is not required or authorized to continue to provide transportation that was previously supplied in error (Appeal of Kluge, 31 Ed Dept Rep 107; Appeal of Zeff, 29 id. 5; Matter of Nowak, et. al., 22 id. 91). In addition, hardship to the family does not provide a basis for providing transportation, where the distance criterion is not met. Eligibility for transportation is based on the objective factor of distance between home and school and such subjective factors as financial or emotional hardship are not a basis for granting transportation (Appeal of Kluge, supra; Matter of Nevin, 25 id. 86, pet to rev dism'd sub nom.; Nevin v. Ambach, et al., Supreme Court, Albany County, February 28, 1986, Bradley, J., n.o.r.). The courts have sustained the use of distance as a means of determining eligibility for transportation (Pratt, et al. v. Robinson, et al., 45 AD2d 641, aff'd 39 NY2d 554 [1976]; Matter of Studley, et al. v. Allen, et al., 24 AD2d 678 [1965]). The Legislature drew the line at two miles; petitioner must meet that objective standard to receive transportation. The fact that the distance between petitioner's home and the school of attendance is nearly two miles cannot be the basis for the relief sought.