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Decision No. 13,613

Appeal of JEFFREY R. STEGNER, on behalf of SAMANTHA R. STEGNER, from action of the Board of Education of the Massapequa Union Free School District regarding a denial of transportation.

Decision No. 13,613

June 4, 1996

Van Nostrand & Martin, attorneys for respondent, LeRoy Van Nostrand, Jr., Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondent's refusal to transport his daughter, Samantha, between his home and a public school in respondent's district. The appeal must be dismissed.

Samantha is a first grade student at Unqua Elementary School in respondent's district. On September 12, 1995, petitioner requested a school bus pass for Samantha and respondent issued her a temporary pass, valid until October 12, 1995. On October 3, 1995, respondent's Director of Transportation denied Samantha permanent bus eligibility, after measuring the route between petitioner's home and Samantha's school as less than one mile. Respondent's policy is to provide transportation for elementary school students who live more than one mile from their school of attendance. In a letter to the president of the board of education dated October 19, 1995, petitioner again requested transportation for Samantha, alleging that the district's measurement method was unreasonable and inaccurate. Respondent's president denied petitioner's request in a letter dated November 10, 1995. Petitioner served respondent with this appeal on December 5, 1995.

Petitioner asserts that the method respondent used to measure the distance between his home and Samantha's school is inaccurate and discriminatory and seeks an order directing respondent to transport Samantha to and from school consistent with the district's transportation policy. Respondent denies that it has improperly denied Samantha transportation and contends that the measurement method it uses to determine student eligibility for bus transportation is reasonable and has been applied in a uniform, non-discriminatory manner. Respondent further contends that the appeal is untimely.

Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal be brought within thirty days from the making of the decision or the performance of the act complained of. Respondent's Director of Transportation denied petitioner's request in a letter dated October 3, 1995. Petitioner appealed that decision to the board of education president by a letter dated October 19, 1995. Respondent's president finally denied transportation for Samantha in a letter dated November 10, 1995. Because petitioner filed this action on December 5, 1995, less than thirty days later, I will not dismiss the appeal as untimely (Appeal of Lavin, 32 Ed Dept Rep 249).

However, the appeal must be dismissed on the merits. The establishment of transportation routes and the measurement of distances between transportation points is within the discretion of the board of education. As long as a district has a uniform measurement policy for transportation purposes, the Commissioner will not interfere with determinations based on such policy (Appeal of Sackett, 2 Ed Dept Rep 33).

Respondent's measurement policy for transportation purposes is based on a survey, performed several years ago, by the firm of Ehle & Shields, licensed land surveyors. This firm conducted the surveys for a number of Long Island school districts for the purpose of providing exact measurements to assist the districts in determining transportation eligibility. Respondent states that the Ehle & Shields' survey measured distances "from a point in the center of the street opposite the school's flagpole, along the centerline of each nearest available public route to points one-half mile (kindergarten), one mile (grades 1-6), and one-and one-half miles (grades 7-12). Respondent further states that "where a dwelling (not the land alone) is situated on or beyond a line perpendicular to the centerline of the road extended from one of these distance points, the resident pupil is eligible for bus transportation according to his school grade."

Education Law '3635(1) provides that the distance for transportation eligibility is to be measured by the nearest available route from a student's home to school. This section requires school districts to provide transportation for all children in grades kindergarten through eight who live more than two miles from the school which they legally attend. A district may choose to provide transportation for lesser distances as long as it is offered equally to all children in the district. As noted above, respondent does provide transportation for distances of less than two miles and its transportation policy provides for the uniform application of that policy. As long as respondent uses a reasonable means of measurement and applies it impartially, the Commissioner will not set aside the determination (Appeal of Rosenberg, 14 Ed Dept Rep 333).

Petitioner contends that respondent's method of measurement, which measures routes down the middle of streets and roads, gives some households an advantage over others, depending upon which side of the street the residence is located. Thus, his dispute is with respondent's measurement points. However, boards of education have reasonable discretion in selecting measurement points for purpose of determining eligibility for transportation (Appeal of Scheuerman, 22 Ed Dept Rep 143; Appeal of Sluyter, 22 id. 201).

My review of the record reveals that respondent has acted within its discretion in its choice of measurement points in this matter. A professionally performed survey provides the basis for all respondent's transportation decisions and its transportation policy is applied uniformly and without prejudice. A board of education is neither required to expend an unreasonable amount of time, effort, and money in measuring distances for the purpose of determining eligibility for transportation, nor to make such measurements with the accuracy of a professional survey (Appeal of Jagoda, 34 Ed Dept Rep 154; Appeal of Shah, 31 id. 312; Appeal of Taylor, 26 id. 228). Under the circumstances, petitioner has failed to establish that respondent acted in an arbitrary, capricious or unreasonable manner in denying Samantha transportation.