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Decision No. 13,333

Appeal of JEANNETTE ORTIZ, on behalf of her daughter, MERISSA, from action of the Board of Education of the Saranac Central School District regarding transportation and tuition.

Decision No. 13,333

(January 23, 1995)

Stafford, Trombley, Purcell, Lahtinen, Owens & Curtin, P.C., Esqs., attorneys for respondent, Dennis D. Curtin, Esq., of counsel

SOBOL, Commissioner.--Petitioner, on behalf of her daughter, Merissa, challenges the refusal of respondent Board of Education of the Saranac Central School District ("respondent") to provide transportation and tuition for Merissa to attend the Plattsburgh Central School District. The appeal must be dismissed.

Merissa is a resident of the Saranac Central School District and previously attended Saranac High School. Although the facts are somewhat unclear, several racial incidents, including alleged racist remarks, messages and slurs, apparently prompted petitioner's efforts to transfer her daughter to a different school district. On March 17, 1994, respondent denied petitioner's request to provide transportation and pay tuition for Merissa to attend high school in the Plattsburgh Central School District. Notwithstanding that decision, on March 25, 1994, Merissa transferred to the Plattsburgh Central School District. Petitioner transports Merissa to high school from their home in the Saranac Central School District.

Petitioner asserts that respondent's refusal to create a climate free from racial prejudice forced her to remove Merissa from respondent's school. Respondent contends the appeal is untimely, was improperly served and that there is no statutory authority for it to transport Merissa or pay her tuition to attend a public school outside the Saranac district.

Before addressing the merits, I will address several procedural issues. An appeal to the Commissioner must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown in the petition (8 NYCRR 275.16). The time to commence an appeal runs from the date of the decision under review (Appeal of Keen, 32 Ed Dept Rep 299; Appeal of Magee, 30 id. 479). The record in this case reflects that the challenged determination was made on March 17, 1994. Petitioner commenced this appeal on September 29, 1994, nearly six months after the decision. Petitioner explains that family hardships and failure to obtain counsel caused the delay. Because the appeal process does not require representation by counsel, I find unavailing petitioner's excuse of no counsel. Additionally, although petitioner's family circumstances were difficult, I am not persuaded that they necessitated such a lengthy delay in commencing her appeal. Accordingly, I must dismiss the appeal as untimely.

The appeal is also procedurally defective because of improper service. Pursuant to 8 NYCRR '275.8(a), if a school district is named as a party respondent, "service upon such school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service." The record reflects that in this case, the petition was served upon a school business administrator. The person actually served does not hold one of the positions designated in the regulation, and petitioner has failed to set forth any proof that the business administrator was designated by the board of education to accept service. Because petitioner has the burden of proving service in compliance with the regulation and has failed to meet that burden, the appeal must also be dismissed on the ground of improper service.

Finally, the appeal must be dismissed on the merits. Petitioner's contention that respondent must provide transportation and pay tuition for Merissa to attend a public school outside of her own district is not supported by law. 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 Franzenburg, 33 Ed Dept Rep 284; Appeal of Porteus, 26 id. 146; Appeal of Jordan, 25 id. 412; Appeal of Nevin, 25 id. 86; Nevin v. Ambach, et al., Supreme Court, Albany County, February 28, 1986, BRADLEY, J.). As noted in Matter of Nevin v. Ambach, supra:

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.

Moreover, a school district need not pay tuition for a student to attend public school outside the school district when the board of education offers an instructional program for such pupils (Matter of Keene, 19 Ed Dept Rep 547). In this instance, respondent offers a high school program and, therefore, is not obligated by statute to provide transportation or tuition to a public high school operated by another school district. The fact that petitioner is dissatisfied with the program offered by respondent does not compel respondent to provide transportation (Appeal of Franzenburg, supra; Matter of Keene, supra), or tuition (Matter of Keene, supra). Moreover, petitioner's assertions of personal difficulty in providing the transportation herself, while regrettable, are not a basis for granting the transportation services requested (Appeal of Van Der Jagt, 33 Ed Dept Rep 517; Appeal of Kluge, 31 id. 107; Appeal of Nervin, supra; Matter of Nevin v. Ambach, et al., supra). Based upon the foregoing, I find no legal basis to impose upon respondent the obligation to pay for tuition or provide transportation for Merissa to attend the Plattsburgh schools.

I am concerned that petitioner's dissatisfaction has its origins in serious charges of racism. I am informed, however, by my staff that respondent is making significant efforts to resolve these issues. On March 30, 1994, a meeting was held with respondent's president, acting superintendent, high school principal, guidance director, attorney, student council president and members of the local chapter of the NAACP. The meeting was an open discussion regarding civil rights within the district. As a result of that meeting, the NAACP and respondent agreed to work jointly to resolve problems and develop strategies to educate and promote an understanding of cultural diversity. Should problems continue to surface within the school district, however, my staff remains ready to assist respondent in their speedy resolution, to ensure the existence of a safe environment where all children are valued and respected.