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Decision No. 13,006

Appeal of BARBARA L. POST, individually and as President of the Peachtown Elementary School, on behalf of parents of children attending the Peachtown Elementary School, from action of the Board of Education of the Southern Cayuga Central School District relating to transportation policy.

Decision No. 13,006

(September 14, 1993)

Douglas P. Bates, Esq., attorney for petitioner

Matthew R. Fletcher, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from a decision made by the Board of Education of the Southern Cayuga Central School District relating to the transportation of students to the Peachtown Elementary School (Peachtown). The appeal must be dismissed.

Petitioner is the President of Peachtown and has two children attending that school, who are transported by respondent. Peachtown, a nonpublic elementary school, has a starting time of 9:00 a.m. On March 23, 1993 respondent adopted a policy, changing transportation services to students attending Peachtown for the 1993-94 school year. Instead of providing transportation directly between home and school, as was previously done, respondent resolved to transport some Peachtown students in the morning on the regular bus runs to its elementary school. The Peachtown students would then transfer to a second bus and be transported from the public elementary school to Peachtown, arriving at about 9:15 a.m. Petitioner seeks an order annulling this proposed transportation plan.

Before reviewing the merits, I must address several procedural issues. Petitioner requests that this appeal be considered a class appeal and that she be allowed to represent the interests of all the parents who are residents of the Southern Cayuga district whose children are enrolled at Peachtown. An appeal to the Commissioner may be maintained on a class basis where the class is so numerous that joinder of all members is impractical and where all questions of fact and law are common to all members of the class (8 NYCRR '275.2). Petitioner has failed to show that the members of the class are so numerous that joinder is not practicable and that all questions of fact and law are common to all members of the class. Accordingly, this appeal may not be maintained as a class appeal.

Respondent maintains that the appeal must be dismissed because petitioner, as President of Peachtown, lacks standing because she is not personally aggrieved by the proposed change in transportation for Peachtown students. However, petitioner has instituted this appeal not only as the President of Peachtown, but also as a parent of students who attend that school and receive transportation services from respondent. As such, petitioner clearly has standing to bring this appeal on behalf of her own children.

Respondent also contends that the appeal must be dismissed because petitioner has failed to join as necessary parties all the parents of other Peachtown students seeking transportation from respondent. Since this appeal is not a class appeal, but is brought by petitioner on behalf of her own children, I find no merit to respondent's contention that such other parents are necessary parties.

Petitioner contends and respondent does not deny that the proposed transportation plan will deliver her children to Peachtown approximately 15 minutes after class begins. Respondent contends that the proposed new plan will result in significant savings to the district and that the Peachtown school must adjust its starting time to 9:15 a.m.

The Education Law does not require a board of education to transport children attending nonpublic schools in all circumstances. For instance, public and nonpublic school authorities are obligated to cooperate in a reasonable manner in the scheduling of classes and transportation (Appeal of Cornerstone Christian School, et al., 30 Ed Dept Rep 452; Appeal of Hacker, 28 id. 141; Appeal of Stickley, 27 id. 328). Nonpublic school authorities are not free of the obligation to cooperate in the hours of opening and closing, and there have been instances in which a failure to cooperate and the adoption of unreasonable or erratic schedules have been held to relieve the public school authorities of the responsibility for arranging transportation to meet those schedules (Matter of Berger, 22 Ed Dept Rep 443; see also Matter of Hamilton, 21 id. 30). In addition, boards of education are required to provide reasonable transportation services to both public and nonpublic school students in an economical manner. Considerations of economy cannot be ignored (Appeal of Stickley, supra; Matter of Tyo, et al., 20 Ed Dept Rep 384).

It appears from the record that respondent's elementary school has a starting time of 9:10 a.m., only five minutes before the new suggested starting time of 9:15 a.m. for Peachtown. In light of the above-cited obligation of nonpublic school authorities to cooperate in the hours of opening and the obligation of boards of education not to ignore economic considerations, I am not persuaded that a transportation scheme under which nonpublic students arrive at their school for a starting time approximately five minutes after the starting time for the public school imposes an unreasonable burden on the nonpublic school or is otherwise unreasonable under the circumstances of this appeal.

Petitioner alleges that is it unreasonable to ask Peachtown to change its schedule since no other nonpublic school has been asked to change its schedule. Such a situation, if true, would not be a basis for declaring respondent's transportation policy to be unreasonable. In any event, the record indicates that in 1990 at least one other nonpublic school altered its schedule upon request to accommodate transportation needs.

I have reviewed petitioner's contention that respondent's proposed transportation plan is invalid because it will require her children to spend an inordinate amount of time in transit and to transfer to a second bus. I find those contentions without merit (see, Appeal of Capozza, 25 Ed Dept Rep 15, and Appeal of Bruner, 32 id. 276).

Petitioner offers new allegations and exhibits in her reply. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR '275.3). A reply is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been in the petition (Appeal of Taber, et al., 32 Ed Dept Rep 346; Appeal of Mermelstein, et al., 30 id. 119). Accordingly, I have not considered the new allegations or exhibits included in petitioner's reply.