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Decision No. 13,480

Appeal of JAMES P. KRAUCIUNAS, on behalf of his daughters, ALYSSA and KASSANDRA, from action of the Board of Education of the Poland Central School District and John W. Stewart, Superintendent, regarding transportation.

Decision No. 13,480

(August 31, 1995)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondents, Susan T. Johns, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals respondents' refusal to change the transportation pick-up point for his daughters. The appeal must be dismissed.

Petitioner resides with his wife and daughters on Fisher Road, a/k/a Sunset Lodge Road, approximately 1400 feet from a Y intersection where Fisher Road branches into Fisher Road and Sunset Lodge Road. This Y intersection is the designated pick-up point for petitioner's daughters. Under the existing bus route, the bus picks up petitioner's daughters and then turns around in the intersection to go back to Route 8, the main road.

On several occasions, petitioner requested that respondents change the designated pick-up point. Respondent board examined petitioner's request in the context of its review of existing transportation policies ("policy"). This review began in August 1994 and ended on March 22, 1995 when the board re-affirmed its policy.

The board's policy states that "transportation services will be provided equally to students in like circumstances." In addition, the policy provides that students living a distance of less than .6 miles from the main road will be picked up at the main road. This policy has been interpreted to require students who live on a side road to walk to the main road unless they live more than .6 miles from the main road. If a student lives in excess of .6 miles, the school bus drives down the side road to a point where it can safely turn around and which is .6 miles or less from the student's home.

On June 14, 1995, petitioner requested a written response to his transportation request. By letter dated June 15, 1995, the superintendent denied petitioner's request. Petitioner commenced this appeal on July 10, 1995.

Petitioner alleges that the current pick-up point is unsafe and hazardous for his daughters. Petitioner also alleges that his daughters are not afforded the same transportation that is made available to other students in the district.

Respondents contend that the appeal should be dismissed as untimely. In addition, respondents deny that the designated pick-up point is unsafe. Respondents maintain that the designated pick-up point is in accordance with board policy. Respondents also maintain that granting petitioner's request would result in additional cost to the district.

Before reviewing the merits, I will address the procedural issue raised by respondents. Respondents maintain that the appeal is untimely, having been commenced more than 30 days after the board's March 22, 1995 decision. Petitioner maintains that his appeal is timely because it was commenced within 30 days of the superintendent's June 15, 1995 letter. 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). In this case, it is not clear whether respondents ever notified petitioner of the board's March 22 decision and its effect on petitioner's request. Accordingly, I will not dismiss the appeal as untimely.

The appeal, however, must be dismissed on the merits. A board of education may exercise its discretion in designating pick-up 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 pick-up 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).

While petitioner's concern for the safety of his daughters is understandable, his contention that the location of the pick-up point is unsafe is inadequately supported. Indeed, the factors petitioner raises - that the pick-up point has limited visibility and requires his children to travel on a roadway which is unlit, has no sidewalk and a 55 m.p.h. speed limit - are identical to the characteristics of many rural and suburban areas, and are not, in and of themselves, a basis for deeming the current pick-up point unsafe (Appeal of Icenogle, 34 Ed Dept Rep 406; Appeal of Jett, 33 id. 446).

Although petitioner contends that respondents are treating his daughters inequitably, this claim is unsubstantiated. In fact, the record indicates that other students who live on side roads are required to walk similar distances to pick-up points. In addition, it appears that the district has only made three exceptions to its policy in the past. Two of those cases involved significant safety hazards and one concerned a student with a disability. Moreover, Education Law '3635 does not require door-to-door transportation and boards of education have discretion to require students to walk to pick-up points from which transportation will be provided (Appeal of Mechanick, et al., 33 Ed Dept Rep 692; Appeal of Jansen, 29 id. 402).

The record demonstrates that respondent board considered pupil safety and convenience, routing efficiency and costs in establishing its current transportation plan. In addition, the district's transportation supervisor inspected the pick-up point and found no hazard. In view of these considerations, and in the absence of any evidence that the present pick-up point is unsafe, petitioner has failed to demonstrate that respondents acted arbitrarily or capriciously when they refused to change the pick-up point for petitioner's daughters.