Decision No. 12,859

(December 22, 1992)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal from respondent's transportation policy for the 1992-93 school year. The appeal must be dismissed.

The City School District of the City of Glen Cove ("the district") is a small city school district established pursuant to Education Law Article 51. As such, it is not required to provide transportation for children residing within the district (Education Law '3635[1][c]). Nonetheless, the district has chosen to provide transportation, on a limited basis, for the past several years. During the 1989-90 and 1990-91 school years, the district provided transportation for all resident students, grades kindergarten through twelve, living between 1.5 and 15 miles from school. During the 1991-92 school year, the district provided transportation only for students in grades kindergarten through four. The district's transportation policy for 1992-93 provides transportation for all students in grades kindergarten through four living between 1 and 15 miles from school, and for all students in grades 5-8 living between 1.5 and 15 miles from school. The 1992-93 transportation policy provides no transportation for students in grades 9-12.

Petitioners are a member of the Glen Cove chapter of the NAACP; the father of a Glen Cove High School ("GCHS") student; and a GCHS student. They commenced this appeal on July 29, 1992, alleging that the district's 1992-93 transportation policy creates "a condition of economic apartheid against minority high school students of the Glen Cove School District ... who can neither afford the personal automobile culture of their peers, do not have parents to transport them, and cannot afford the fees for private transportation."

Respondent contends that petitioners lack standing to maintain this appeal. This objection must be sustained with respect to petitioner Cassin, who asserts standing on the basis of membership in the NAACP. The Commissioner of Education has held that the NAACP, as an unincorporated association, does not have standing to maintain an appeal pursuant to Education Law '310 (Appeal of National Assn. for the Advancement of Colored People (NAACP), 30 Ed Dept Rep 187, 189). For the same reasons, an individual representative of the NAACP would have no greater standing than the association itself. Because petitioner Cassin sets forth no additional basis to establish his standing, he cannot maintain this appeal.

Petitioner Hubert is the father of petitioner Wilson. It is not possible to determine whether petitioner Wilson could maintain an appeal on her own behalf, because the record does not indicate whether she is over the age of 18. The record confirms, however, that petitioner Wilson is a student at GCHS, and ineligible for transportation under the district's 1992-93 policy. For this reason, her father, petitioner Hubert, is an aggrieved party within the meaning of Education Law '310. He therefore has standing to maintain the appeal. Because the parties have submitted no information regarding petitioner Wilson's age, I will consider petitioner Hubert to have brought the appeal on his daughter's behalf.

Respondent also contends that the appeal is untimely. This objection must be dismissed. Respondent argues that the 1992-93 transportation policy represents no significant change from the 1991-92 policy, which similarly excluded high school students from district transportation. For this reason, respondent contends that petitioners' challenge is time-barred. I do not agree. The 1992-93 transportation policy is a separate policy, the adoption of which may be appealed under Education Law '310. Petitioners are not precluded from appealing the 1992-93 policy simply because it bears similarity to the policies of previous years.

An appeal to the Commissioner of Education must be instituted within 30 days "from the making of the decision or the performance of the act complained of" (8 NYCRR 275.16). The district adopted its 1992-93 transportation policy on June 30, 1992. Petitioners commenced this appeal on July 29, 1992, within the 30-day period. The appeal, therefore, is timely.

Petitioners seek to maintain this appeal "on behalf of all others in the same situation." Pursuant to the regulations of the Commissioner of Education, however, a class appeal is permitted only where the class of individuals "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" (8 NYCRR 275.2[a]). Class status will not be permitted where petitioners fail to set forth the number of individuals they seek to represent (Appeal of National Assn. for the Advancement of Colored People (NAACP), 30 Ed Dept Rep 187, 189, supra). Petitioners do not indicate the number of individuals included in the proposed class. Nor, in this matter, would all questions of fact be common to all members of the class. Class status is therefore denied.

As respondent correctly asserts, city school districts may provide transportation for nonhandicapped students (Education Law '2503[12]), but are not required to do so (Education Law '3635[1][c]; Appeal of DeRario, 28 Ed Dept Rep 92, 94; Appeal of Dandreano, 28 Ed Dept Rep 109). If city districts choose to offer transportation, they must provide it equally to all children in "like circumstances" (Education Law '3635[1][c]). The Commissioner of Education has held that students in different grades are not in "like circumstances" and that city school districts may establish transportation policies that make distinctions by grade levels (Appeal of Dandreano, 28 Ed Dept Rep 109, supra). Accordingly, the district's 1992-93 transportation policy is not unreasonable merely because it provides transportation for students in grades kindergarten through 8, but not for students in grades 9-12.

Although city school districts have broad discretion in adopting transportation policies, a policy may not "arbitrarily create `suspect' categories or irrationally or invidiously discriminate against a particular class of persons" (Matter of Hatch v Board of Educ., 81 AD2d 717). Under the district's policy, all high school students are ineligible for district transportation. Petitioner contends, however, that GCHS students who can afford private means of transportation have greater access to school than students from less affluent homes. Petitioner argues, therefore, that the district's transportation policy discriminates against students who cannot afford private transportation.

Although petitioner has not framed his argument in constitutional terms, allegations of discrimination necessarily implicate the State and Federal Constitutions. An appeal to the Commissioner of Education is not the proper forum for litigating such questions, particularly when they have not previously been subject to judicial interpretation (Appeal of DeGroff, 31 Ed Dept Rep 332, 335; see, Appeal of Sewanhaka Central High School Dist., 31 Ed Dept Rep 360; Appeals of Malley, 31 Ed Dept Rep 149). Consequently, I will not decide petitioner's claim of discrimination here. If petitioner wishes to pursue his constitutional claims, he must do so in an appropriate judicial forum (Appeal of DeGroff, 31 Ed Dept Rep 332, supra).

THE APPEAL IS DISMISSED.

END OF FILE

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