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Decision No. 13,049

Appeal of MARGARET FRANZENBURG and KURT FRANZENBURG, on behalf of Meg Taylor, from a determination of the Board of Education of the Union-Endicott Central School District relating to transportation.

Decision No. 13,049

(November 17, 1993)

Leasure, Gow, Munk & Rizzuto, attorneys for respondent, Thomas P.

Rizzuto, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal respondent's denial of a request for the transportation of their daughter to a public high school in another school district. The appeal must be dismissed.

Petitioners are residents of the Union-Endicott Central School District and are the mother and stepfather of Meg Taylor, a 17 year old student in her senior year of high school. In the fall of 1992, Meg transferred from the Union-Endicott High School to the Johnson City High School to take advantage of Johnson City's "mastery" educational program. The Johnson City High School is a public school located within 15 miles of petitioners' residence.

On March 25, 1993, petitioner Margaret Franzenburg requested that respondent provide transportation for her daughter to the Johnson City High School for the 1993-94 school year. Petitioner Kurt Franzenburg also requested transportation for his stepdaughter at a board of education meeting. On May 17, 1993 the board of education denied petitioners' request for transportation. This appeal ensued.

Petitioners contend that Education Law '3635 requires respondent to transport Meg to a public high school in another district if such school is more than 3 and less than 15 miles from her home. Petitioners further contend that respondent's decision was an abuse of discretion because respondent relied on misleading information regarding the cost of transportation, could accommodate petitioners' request by making a slight change to the transportation schedule and violated the district's written transportation policy. Petitioners maintain that respondent's decision was arbitrary and capricious because it was based on an unwritten policy. Petitioners also maintain that respondent's decision violates Meg's constitutional rights of equal protection and freedom of religion.

Respondent contends that Education Law '3635 does not require a school district to provide transportation to students who opt to enroll in a public school outside the district. Respondent argues that the decision whether to provide transportation in such case is solely within its discretion.

It is well settled that a board of education is not obligated to provide transportation to pupils enrolled in the public schools of another school district where the board of education offers an instructional program for such pupils (Appeal of Porteus, 26 Ed Dept Rep 146; Appeal of Jordan, 25 id. 412; Appeal of Nevin, 25 id. 86, Matter of Nevin v. Ambach, Albany Co Sup Ct, 2/28/86, n.o.r.; Matter of Davis, 22 id. 23; Matter of Keene, 19 id. 547; Matter of Klein, et al., 76 St Dept Rep 133). As noted in Matter of Nevin v. Ambach:

Education Law '3635 clearly does not require a public school district to transport resident pupils to another public school district when such pupils have been enrolled by parental choice in the other school district.

In this instance, respondent offers a high school program and, therefore, is not obligated by statute to provide transportation to a public high school operated by another school district. The fact that petitioners are dissatisfied with the academic program offered by respondent does not require respondent to provide transportation (Matter of Keene, supra). Moreover, the fact that respondent could accommodate petitioners' request under existing arrangements with little cost or inconvenience is no basis upon which to provide transportation for which a child is not otherwise eligible (Appeal of Porteus, supra; Appeal of Nevin, supra).

Respondent's written transportation policy does not mandate the transportation requested by petitioners and provides that the Commissioner of Education's regulations and decisions shall govern any questions not covered by specific declarations of policy. Respondent's unwritten policy of not providing transportation to nonhandicapped students attending public schools outside the district is consistent with the decisions of the Commissioner of Education cited herein. Therefore, in the absence of any evidence that respondent has abused its discretion in denying petitioners' request for transportation, the appeal must be dismissed.

To the extent that petitioners raise constitutional claims, it is well settled that Education Law '310 is not the proper forum to decide novel questions of constitutional law (Appeal of Cassin, 32 Ed Dept Rep 373; Appeal of DeGroff, 31 id. 332; Appeal of Malley, 31 id. 149; Appeal of Sepinski, 25 id. 183). If petitioners wish to pursue their constitutional claims, they must do so in an appropriate judicial forum (Appeal of Cassin, supra; Appeal of DeGroff, supra).