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Decision No. 12,677

Appeal of MARY PETO, on behalf of Christopher and Katrina Peto, from action of the Board of Education of the Watertown City School District relating to transportation policy.

Decision No. 12,677

(April 3, 1992)

Hiscock & Barclay, Esqs., attorneys for petitioner, Keith B. Caughlin, Esq., of counsel

O'Hara, O'Connell, Hrabchak & Gebo, P.C., attorneys for respondent, Laura J. Witkowski, Esq., of counsel

Petitioner appeals from a decision made by respondent board of education of the Watertown City School District on June 4, 1991, and communicated in a letter signed by the superintendent on June 5, 1991, relating to the transportation of nonpublic school students. The appeal must be dismissed.

Petitioner is the parent of two children, Christopher, a tenth grade student at Immaculate Heart Central School, and Katrina, a seventh grade student at Sacred Heart School. Both schools are nonpublic schools located in the City of Watertown. Both students use transportation provided by respondent.

Petitioner claims that the current transportation policy of the district has resulted in a somewhat longer school day for the public schools in the district, as compared to the six nonpublic schools in the district. Although there is some disagreement as to whether or not the nonpublic schools are using all the time available to them in the morning, after students are delivered by the district's transportation contractor, it appears that the instructional day in the nonpublic schools may be perhaps 20 minutes shorter than in the public schools.

For several years, the principals of the five Catholic schools in the district have tried to persuade district administrators to adjust the transportation policy and schedules in such a way that the Catholic schools could make their afternoon dismissal times approximately 20 to 25 minutes later than at present. (The record is unclear as to whether or not the Faith Fellowship School, a non-Catholic school, joined in these efforts.) During the early spring of 1991, several meetings of the Catholic schools and public school administrators were held, but on June 4, 1991, respondent board determined not to adjust the transportation schedules sought by the Catholic schools. As a result, the Catholic schools did not change their afternoon dismissal times. Instead, this appeal resulted.

Petitioner requests that I treat this as a class appeal, pursuant to 8 NYCRR 275.2, which provides for such a procedure "where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class." In support of this request, petitioner has identified 147 families who reside in respondent district and whose children attend the five Catholic nonpublic schools in the City of Watertown. Petitioner also claims that all nonpublic school students, whether or not they are provided transportation, are affected and should be included in the class, because they all continue to have a shorter instructional day because of respondent's determination not to modify its transportation schedule.

The appeal may not be maintained as a class appeal. Petitioner presents the affidavit of two parents who want a longer nonpublic school day. Otherwise, there is no proof that any or all of the proposed identifiable class members are in favor of a longer instructional day in the nonpublic schools. No information at all is presented as to students of the Faith Fellowship School. As a result, it cannot be said that all questions of fact and law are common to all members of the proposed class. Indeed, the factual and legal differences are greater than the similarities. The application to proceed as a class appeal must, therefore, be denied.

Moreover, I find that the petition fails to state a claim upon which relief can be granted. Petitioner has no cognizable claim against respondent district, but in effect seeks to represent the position of some or all of the nonpublic schools.

If there is any recognizable dispute, it is an ongoing dispute between the nonpublic schools in the City of Watertown and respondent district. It appears that representatives of the six nonpublic schools met with district representatives on March 20, 1991, and again on May 1, 1991. As a result of those meetings, respondent's representatives agreed to a minor adjustment in the district's afternoon transportation schedule as of April 22, 1991, to allow for a five to ten minute later pickup at the nonpublic schools. However, the full board decided on June 4, 1991, not to further modify the transportation schedule.

Under the present contractual transportation arrangements, nonpublic school students who use district transportation (approximately 530 students) are picked up on the first bus run of the day, along with approximately 1100 public students in grades 7-12, and are delivered to a central point. The nonpublic school students are then delivered to their own schools by 7:40 a.m. However, it appears that the nonpublic schools do not begin classes until 8:00 a.m. or later, apparently because of a concern that an earlier starting time would be unworkable because of transportation difficulties with the outlying school districts.

Under the present arrangements, nonpublic students are picked up by the district's contractor at 2:05 or 2:10 p.m., depending on the school they attend. The nonpublic schools would prefer to have that pickup time 20 to 25 minutes later, but that would create serious difficulties under the current transportation contract. It is respondent's position that the nonpublic schools could achieve the same result by using the time between 7:40 a.m. and 8:00 a.m. for instructional purposes, and that, in any event, there is no legal requirement that the public and nonpublic school days be identical. While it appears that the nonpublic schools have a somewhat shorter school day, neither party has cited any relevant authority that would require that the public and nonpublic school days be exactly equal in length.

Although the nonpublic schools are not parties to this appeal, petitioner in essence is trying to use this appeal to represent the views of several of the Catholic schools, using a combination of sworn and unsworn proof. Petitioner has no standing to do so (Appeal of Caunitz, et al., 30 Ed Dept Rep 396). If the nonpublic schools had in fact changed their afternoon dismissal times, if respondent district had wrongly refused to adjust its transportation schedules, and if petitioner's children were thereby deprived of transportation, this might be a viable appeal. However, from the record before me, it is clear that the six nonpublic schools decided not to change their dismissal time because of respondent's action. As a result, it appears that petitioner's daughter Katrina continues to receive transportation to and from Sacred Heart School, and her son Christopher continues to receive transportation to and from Immaculate Heart Central School. There is no suggestion in the record that their transportation is in any way inadequate given the present opening and closing times at their schools. At this point, petitioner has suffered no direct injury as a result of respondent's decision not to cooperate with the proposed schedule change. On this record, petitioner cannot represent the interests of the nonpublic schools, nor has she sustained any injury of her own sufficient to support an appeal under Education Law '310. I will not render what would for all practical purposes be an advisory opinion (Appeal of Bd. of Ed., Bellmore-Merrick CHSD, 19 Ed Dept Rep 125, reopening den 19 id. 484; Appeal of Dell, 18 id. 351).

Although I am constrained to dismiss this appeal, I urge the public school authorities and the nonpublic school administrators to continue to try to resolve perceived problems in the transportation system. I also request that they include administrators of the Indian River, General Brown, Carthage, South Jefferson, and other districts in their discussions, since those districts send a substantial number of students to the nonpublic schools in Watertown. The problems which the nonpublic schools believe they have cannot be solved without the cooperation of all the districts which provide transportation to the nonpublic schools.