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Decision No. 12,996

Appeal of KATHLEEN EISSING, on behalf of her daughter KERRI, from action of the Board of Education of the Port Jervis City School District relating to transportation.

Decision No. 12,996

(August 31, 1993)

Cuddeback, Onofry & Schadt, Esqs., attorneys for respondent, Robert A. Onofry, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's denial of her request to transport her daughter Kerri to a nonpublic school. The appeal must be dismissed.

In January 1993, petitioner requested transportation for her daughter for the 1993-94 school year to attend the John S. Burke High School. By letter dated March 24, 1993, respondent informed petitioner that her request was denied on the ground that the distance between her home and the nonpublic school exceeds the 15 mile limit.

Petitioner maintains that respondent's denial of her request was arbitrary and capricious, since respondent previously provided transportation to children attending other nonpublic schools that exceed the 15 mile limit. She alleges that the only reason respondent is now denying all requests over 15 miles is to justify its denial of her request.

Respondent admits that it previously offered transportation to students attending nonpublic schools located over the 15 mile limit, but asserts that commencing with the 1993-94 school year, all such requests would be denied in accordance with its revised transportation policy. Consistent with Education Law 3635(1), respondent revised its transportation policy on August 25, 1992, providing in pertinent part that effective September 1, 1992:

[T]ransportation shall be provided up to a distance of fifteen miles, determined by measuring from the legal residence of the pupil to the school of attendance.

Regular transportation services provided to public school pupils will be offered equally to all resident private and parochial school children in like circumstances.... Where students residing in the District live more than 15 miles from their non-public school, thereby not qualifying for transportation from home or school, the Director of Transportation shall designate one or more public schools as centralized pick-up points and shall provide transportation between such points and the non-public school. In order for this arrangement to be made, the District must be currently transporting pupils to that non-public school. The District is not responsible for the provision of transportation for pupils between their home and such pick-up points. (emphasis added)

(Port Jervis City School District Transportation Manual, January 19, 1993, pages 3 and 8).

While there is no dispute that respondent provided transportation in excess of 15 miles for students attending nonpublic schools during the 1992-93 school year, respondent explains that it determined not to apply its revised policy that year, in cases where the transportation request had previously been granted. However, respondent applied its revised transportation policy effective September 1, 1993, which adopted the 15 mile rule for anyone who applied thereafter.

There is no evidence that respondent has failed to implement its policy equally to all children in like circumstances for the 1993-94 school year. In fact, petitioner's own evidence shows that another parent's request for transportation to a nonpublic school was similarly denied for the 1993-94 school year because the school exceeded the 15 mile limit. Accordingly, the petition must be dismissed.

Petitioner also contends that respondent only denied transportation over the 15 mile limit to others who requested it to justify its denial of her request. Petitioner provides no evidence to support her claim and has failed to establish the facts upon which she seeks relief (8 NYCRR '275.10; see, Appeal of Bach, 32 Ed Dept Rep 273; Application of Verity, 31 id. 485; Appeal of Singh, 30 id. 284). Since there is no evidence that respondent's determination was either arbitrary or capricious, there is no basis to substitute my judgment for that of respondent.