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Decision No. 12,791

Appeal of LEON and DEBRA EISIKOWITZ from action of the Board of Education of the Lawrence Union Free School District regarding transportation.

Decision No. 12,791

(September 1, 1992)

Jaspan, Ginsberg, Schlesinger, Silverman & Hoffman, attorneys for respondent, Lawrence J. Tenenbaum, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal from a determination of the Lawrence Union Free School District ("respondent") refusing to modify their son's transportation schedule. The appeal must be dismissed.

Petitioners' son is five years old. During the 1991-92 school year, he attended kindergarten at Yeshiva Darchei Torah ("YDT"), a private school located in Far Rockaway. The YDT kindergarten program runs from 9:00 a.m. to 3:20 p.m. The district transports students to both YDT and the nearby Torah Academy for Girls and provides two morning and afternoon runs with 8:30 a.m. and 7:30 a.m. arrival times and 4:15 p.m. and 5:00 p.m. dismissal times, Monday through Thursday. The district also provides transportation for an early dismissal on Friday at 12:00 p.m. and 1:45 p.m.

On October 10, 1991, petitioners requested additional transportation to YDT in light of the fact that petitioners' son arrived at YDT 30 minutes before class started and left the school 55 minutes after his class ended. The facts are in dispute concerning petitioners' requests for transportation and reimbursement. On October 22, 1991, respondent denied their request for reimbursement because reasonable transportation was already provided to students at YDT in a regular and timely fashion. On February 11, 1992, petitioners verbally presented their complaint to respondent board. By letter dated February 26, 1992, the president of the board of education notified petitioners that the board had found the existing transportation reasonable and adequate. This appeal was filed on April 14, 1992. Petitioners' request for a stay pending my determination on the merits of the appeal was denied.

Petitioners contend that their son is entitled to transportation at more reasonable times and that respondent should provide additional transportation or reimburse petitioners for expenses incurred in transporting their son. Petitioners allege that the kindergarten program their son attends is of a length commonly offered by both public and nonpublic schools in the district.

Respondent contends that the petition fails to state a claim. Respondent alleges that the petition was untimely and that the controversy is moot. Respondent also claims that petitioners, acknowledging the economic burden their request would place on the district, withdrew their request for additional bus service. Respondent also alleges that its determination was neither arbitrary or capricious.

Before discussing the merits, I will address the timeliness issue. Petitioners originally submitted an "appeal" by letter dated March 29, 1992. That document was returned to petitioner for failure to follow certain procedures prescribed by regulation. Petitioners then refiled this petition on April 14, 1992. The original "appeal" submitted by petitioners was, therefore, untimely even if it had been personally served on respondent, since it was brought more than 30 days from the decision complained of (8 NYCRR 275.16). Although petitioners claim that instructions included in the rejection of their appeal dated March 29, 1992 implied that their errors were reparable, that was only true assuming that the original letter "appeal" was personally served on respondent, which it was not. As I have previously held, ignorance of the appeal process does not afford a sufficient basis to excuse a delay (Appeal of Pitney Bowes, Inc., 31 Ed Dept Rep 290).

Although I am constrained to dismiss this appeal on procedural grounds, I will nevertheless address the merits because of the likelihood that this controversy will arise again. Petitioners assert that the length of their son's kindergarten program is similar to that of other public and nonpublic schools in the area. While this may be true, they offer no proof, and the burden is on petitioners to supply that information. Assuming that petitioners' assertions are correct, respondent has an obligation to provide transportation services equally to petitioners in the same manner as other district residents (Education Law '3635).

Petitioners assert that their son arrived 30 minutes before his class commenced at YDT and waited 50 minutes after class was over to be transported home on the schedule provided by the district. Although this specific time period has not been determined to be unreasonable, I note that previous Commissioners' decisions have addressed waiting periods. A twenty minute waiting period has been deemed acceptable (Appeal of Stickley, 27 Ed Dept Rep 328), while one hour has been considered excessive (Appeal of Cornerstone Christian School, et al, 30 id. 452). In light of the age of petitioners' son, shorter waiting periods are generally preferable.

I also note that the record indicates that parents of kindergartners in respondent's district received a memorandum from YDT dated May 1992 which stated that their children would not be permitted to ride the school bus with the older children. The reason proffered was that there is no supervision for kindergartners, since they arrive significantly before the start of their class at 9:00 a.m. I note that nonpublic schools are responsible for the safety and supervision of their students once they arrive (Appeal of Stickley, supra). This responsibility cannot be overlooked by the nonpublic school.

Although I am constrained to dismiss this appeal, I urge the district authorities to try to resolve the perceived problems in the transportation system and work with the parents and administrators at Yeshiva Darchei Torah to provide appropriate transportation for kindergartners in the district.

I have considered petitioners' other contentions and find them without merit.