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Decision No. 12,758

Appeal of ROBERT G., on behalf of his son, James G., from action of the Board of Education of the Valley Stream Central High School District relating to transportation.

Decision No. 12,758

(July 23, 1992)

Sidney Romash, Esq., attorney for respondent

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

Petitioner's son resides at 28 Lynwood Drive in the Valley Stream Central High School District and attends Regis High School, a private school located outside respondent's district. Relying on the representation by petitioner's wife that the student resided less than fifteen miles from the school, respondent granted petitioner's request on August 19, 1991 to transport petitioner's son between home and school effective September 1991. In September 1991, respondent actually measured the distance and found that it was in excess of fifteen miles. Petitioner was notified by letter dated October 1, 1991, that a recommendation would be made to the board of education at its October 8 meeting to revoke its decision to provide transportation unless petitioner could identify an alternative route between his residence and the school which is less than fifteen miles. By letter delivered October 7, 1991, petitioner asked the board to delay consideration of his transportation request until its November meeting but submitted no information regarding any alternative route. On October 8, 1991, at its regularly scheduled board meeting, respondent revoked its prior decision to transport petitioner's son and notified petitioner by letter dated October 10, 1991. Petitioner commenced this appeal on November 12, 1991.

Education Law '3635(1)(a) requires the district to transport all children residing in the district who attend grades kindergarten through twelve," up to a distance of fifteen miles, 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 greater distance than that required by statute only with the approval of district voters (Appeal of Hannan, 28 Ed Dept Rep 456). In this case, district voters have not given such approval. To the contrary, respondent has adopted Board Policy 3545.3 concerning "Transportation of Students Attending Non-Public Schools", which provides in pertinent part:

Transportation will be provided to non-public schools in accordance with Article (sic) 3635 of the State Education Law. Such schools shall be more than two miles and less than fifteen miles from the student's home for the seventh and eighth grade students and more than three miles and less than fifteen miles for students in grades nine through twelve. The distance in each case shall be measured by the nearest available route from the home to the school, beginning at the curb nearest the main entrance door of the student's home to the curb nearest the main entrance door to the school.

Therefore, respondent provides transportation to all students in grades kindergarten through twelve who live less than fifteen miles from the school. Petitioner's son does not qualify for home to school transportation because his home is admittedly not within the 15-mile limit, and the voters of the school district have not approved transportation beyond fifteen miles (Appeal of Eberhardt, 25 Ed Dept Rep 263; Matter of Rosen, 20 id. 136). Consequently, there is a reasonable basis for respondent's determination that petitioner's son is not eligible for the requested transportation.

Petitioner concedes that his residence is more than fifteen miles from his son's private school but he nevertheless requests that I order respondent to provide his son with transportation because it was provided briefly in the past, albeit mistakenly. Petitioner contends that the district bestowed upon the student an irrevocable "absolute right" to transportation when it originally granted petitioner's request and that respondent is estopped from correcting its error.

There is no basis for petitioner's claim that a right to transportation was created by the district's mistaken determination. The fact that the district transported petitioner's son for approximately one month does not estop respondent from declining to provide such transportation in the future (Appeal of McMillan, 31 Ed Dept Rep 343; Matter of Nevin, 25 id. 86) and respondent has no authority to make an exception to the eligibility requirements of Education Law '3635 because it erroneously provided transportation to an ineligible pupil in the past (Appeal of Eberhardt, supra; Matter of Lembo, et al., 18 Ed Dept Rep 505; Matter of McIntyre, 25 id. 156).

Petitioner also contends that he was provided inadequate notice of the October 8, 1991 board meeting at which his son's transportation was revoked because he did not receive respondent's letter dated October 1, 1991 until October 7, 1991. Petitioner claims that respondent should have provided him thirty days' notice and a hearing before the board although neither is required by Education Law '3635 or respondent's policy. Respondent contends that its letter containing the meeting notice and inviting petitioner to present information regarding alternative routes was mailed on October 1, 1991, providing adequate notice and opportunity to inform the board. In any event, the record reflects that petitioner responded to the notice before the board meeting of October 8, 1991 but never supplied information regarding alternative routes. Since petitioner received notice prior to the board meeting and had an opportunity to present information to the board before its determination, I find no merit to his claim.

Petitioner further contends that respondent's decision not to provide transportation will upset his son emotionally and cause a financial hardship. Petitioner has failed to present any evidence to substantiate that contention, which would not, in any event, afford a basis for granting the relief requested (Appeal of Nevin, supra).

I have considered petitioner's other contentions and find them to be without merit.