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Decision No. 13,580

Appeal of DAVID D. WILLER from action of the Board of Education of the Norwood-Norfolk Central School District relating to transportation.

Decision No. 13,580

(March 21, 1996)

Arthur F. Grisham, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Norwood-Norfolk Central School District to change the time that his children are picked up from the nonpublic school they attend. The appeal must be dismissed.

Petitioner brings this appeal on behalf of his two children who attend St. Mary's School in Potsdam. Attached to the petition are documents signed by 11 other parents purporting to consent to membership in a class appeal (8 NYCRR '275.2). Respondent provides bus transportation to and from the nonpublic school. Petitioner complains that the dismissal time at St. Mary's is 3:00 p.m., but that his children are picked up from the school at 2:30 p.m. Petitioner claims that this arrangement violates Education Law '3635.

Respondent contends that, although the dismissal time at St. Mary's is officially 3:00 p.m., no formal classroom instruction occurs between 2:30 p.m. and 3:00 p.m. It claims that the principal of St. Mary's has advised that between 2:30 p.m. and 3:00 p.m. individual students receive tutoring, where needed, and some of that time period is used for recess and homework activities. It also appears that at least three other school districts pick up St. Mary's students between 2:30 and 2:35 p.m. each day. Respondent contends that in order to pick up students at 3:00 p.m., it would incur substantial additional expense, partly for an additional bus and an additional driver, and for additional supervision at the public school where the nonpublic students join the public school students for their ride home. Respondent also contends that the appeal is untimely, that petitioner has failed to exhaust administrative remedies, that the current transportation arrangements are fair and equitable, and that even if respondent district began picking up students at 3:00 p.m., the other three districts would continue to pick up their students at 2:30 p.m.

As a preliminary matter, petitioner's request to proceed as a class appeal must be denied. It does not appear that the class he seeks to represent is so numerous that joinder of all members is impracticable nor that all questions of fact and law are necessarily common to all members of the class (8 NYCRR '275.2[a]).

The Education Law does not require boards of education to provide transportation to children attending nonpublic schools in all circumstances. Public and nonpublic school authorities have an obligation 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; Matter of Lavelle, 24 id. 16). Furthermore, the adoption by nonpublic school authorities of unreasonable or erratic schedules has been held to relieve public school authorities of the responsibility for arranging transportation to meet those schedules (Matter of Berger, 22 id. 443).

In this record, there is no indication that a 3:00 p.m. dismissal time by St. Mary's School is unreasonable. However, the 3:00 p.m. dismissal time is somewhat illusory, since it appears that many students leave at 2:30 p.m. and that no formal instruction occurs after that time. Petitioner has not submitted any proof to the contrary. In the absence of such proof, it does not appear that petitioner's children are being deprived of any instruction. For that reason, the appeal will be dismissed.

I have considered the parties' remaining contentions and find them without merit.