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Decision No. 13,147

Appeal of ALMETA WAKLATSI from action of the Board of Education of the South Colonie Central School District regarding transportation.

Decision No. 13,147

(April 6, 1994)

Tabner, Laudato and Ryan, Esqs., attorneys for respondent, C. Theodore Carlson, Esq., of counsel

SOBOL, Commissioner.--Petitioner challenges the refusal of the Board of Education of the South Colonie Central School District ("respondent") to change the transportation pickup point for her son. The appeal must be dismissed.

Petitioner is the parent of a school-aged child who resides in respondent's district and attends a nonpublic school. Prior to the 1993-94 school year, the pickup point for petitioner's son was at the driveway of their residence. For the 1993-94 school year, the pickup point for the child was relocated to a nearby intersection on a heavily travelled road. After the first day of school on September 8, 1993, petitioner contacted respondent's transportation representatives to discuss the safety of the new pickup point. Respondent told petitioner that the bus would no longer be turning onto her street and that her son would be transported from the new pickup point.

On September 13, 1993, petitioner wrote a letter to respondent and its superintendent requesting that the pickup point be changed to that of the previous year. Petitioner also appeared before respondent at its meeting on September 21, 1993. On October 2, 1993, petitioner received a written response from respondent's superintendent which denied her request to alter the pickup point. This appeal ensued. Petitioner's request for interim relief pending a final determination on the merits of this appeal was denied on November 18, 1993.

Petitioner alleges that the current pickup point is unsafe and hazardous for her son. Respondent contends that the appeal should be dismissed as untimely since petitioner learned of the pickup point on September 8, 1993, yet failed to commence this appeal until October 29, 1993. Respondent also contends that petitioner has no right to door-to-door transportation, and its selection of a pickup point was reasonable under the circumstances.

Before reviewing the merits, I will address the procedural issues. In a letter made part of the record, respondent objects to petitioner's "reply memorandum of law" because it allegedly contains new allegations and exhibits that are not relevant to the issue before me. Respondent's objection is well taken. A memorandum of law may not be used to belatedly add assertions or exhibits which should have been included in the petition (Appeal of Greene and Wrona, 33 Ed Dept Rep 377; Appeal of Albert, et al., 32 id. 615; Appeal of Johnson, 26 id. 42). Accordingly, I will not consider such new allegations or exhibits in this appeal.

Respondent also contends that the appeal is untimely, having been commenced more than 30 days after petitioner discovered that the pickup point had been changed from the previous year. Petitioner contends that her appeal is timely because it was commenced within 30 days of respondent's notification letter dated September 29, 1993, which petitioner claims she received on October 2, 1993. 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, unless excused by the Commissioner for good cause (8 NYCRR 275.16). Respondent reviewed petitioner's complaint and issued its final determination in the September 29, 1993 letter. Therefore, the appeal was timely commenced since it was served on October 29, 1993, within 30 days of respondent's final determination.

The appeal, however, must be dismissed on the merits. A board of education may exercise its discretion in designating pickup points (Appeal of Guido, 33 Ed Dept Rep 244; Appeal of Klein, 27 id. 76; Appeal of Bohonyi, 26 id. 363; Appeal of Taylor, 26 id. 255), provided that the board uses care in exercising such discretion (Appeal of Klein, supra; Appeal of Bohonyi, supra; Appeal of Scheinberg, 21 Ed Dept Rep 32). In establishing a pickup point, a board of education must consider and balance considerations of pupil safety and convenience, routing efficiency and costs (Appeal of Donk, et al., 27 Ed Dept Rep 254; Appeal of Taylor, supra).

Petitioner contends that respondent acted improperly when it refused to change her son's transportation pickup point. She maintains that the current pickup point is unsafe because it is on a heavily travelled road with no sidewalks and that it is unsafe in the winter. Respondent maintains that it changed the pickup point from petitioner's driveway to the other road because there are no longer other students in the area requiring additional stops. Respondent states that since there is no reason to proceed down petitioner's street, it can more efficiently route the bus to an intersection and the current route best meets the needs of the district. Respondent also contends that it has reviewed the safety issues concerning the pickup point and believes the boarding area is secure.

The record demonstrates that respondent has considered pupil safety and convenience, routing efficiency and costs in establishing its current transportation plan. Respondent correctly notes that, except in very limited circumstances not presented by this case, it is not obligated to provide door-to-door transportation from home to school (Appeal of Lavin, 32 Ed Dept Rep 249). In addition, it is the responsibility of the parents, and not the district, to see that their child safely reaches the pickup point (Pratt v. Robinson, 39 NY2d 554; Appeal of Fausel, 30 Ed Dept Rep 395; Appeal of Klein, supra). While I sympathize with petitioner's concerns for her son, there is no basis for me to overturn respondent's decision. Indeed, the factors she raises -- that the pickup point is located on a highway in an area without sidewalks -- are identical to the characteristics of many pickup points in rural or suburban areas and are not, in and of themselves, a basis for deeming the current pickup point unsafe. The record indicates that respondent refused petitioner's request because granting such request would adversely affect routing efficiency. In light of those considerations and the absence of any evidence that the present pickup point is unsafe, petitioner has failed to show that respondent acted arbitrarily or capriciously when it refused to change the pickup point for her son.