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Decision No. 13,688

Appeal of DENNIS J. WELKA, on behalf of JONATHAN WELKA, from actions of the Board of Education of the City School District of the City of North Tonawanda regarding nonpublic school transportation.

Decision No. 13,688

(October 17, 1996)

Norton/Radin/Hoover/Freedman, attorneys for respondent, Bernard B. Freedman, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges respondent's transportation policy, which requires nonpublic students attending schools located outside the district to pay a portion of their transportation costs. The appeal must be dismissed.

During the 1995-96 school year, respondent provided public service bus passes to its secondary students attending nonpublic schools outside the school district. On June 26, 1996, respondent amended its policy, so that beginning in the 1996-97 school year, the district would provide 85 percent of the cost of such passes, with the remaining 15 percent to be paid by the students' parents. By letter dated July 19, 1996, respondent's transportation director notified petitioner that his share of his son's $600.60 bus pass for the 1996-97 school year would be $90. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on September 6, 1996.

Petitioner contends that the new policy is discriminatory, inconsistent, unreasonable, and in violation of Education Law '3635(1)(c). Respondent contends that the change was made for budgetary reasons and that it treats students in like circumstances equally, as required by the Education Law.

Education Law '3635(1)(c) provides in pertinent part:

The foregoing provisions of this subdivision shall not require transportation to be provided for children residing within a city school district, but if provided by such district pursuant to other provisions of this chapter, such transportation shall be offered equally to all such children in like circumstances. (Emphasis added.)

Thus, the board of education of a city school district is not required to provide transportation. However, such a board may, in its discretion, provide transportation as long as its transportation policy is reasonable and provides like services for pupils "in like circumstances." It is well established that pupils attending nonpublic schools located outside a district are not "in like circumstances" with pupils attending nonpublic schools located within the district. City school districts may provide transportation for students attending within the district while providing no transportation for those attending outside its boundaries (O'Donnell v. Antin, 81 Misc. 2d 849, aff'd, 36 NY2d 941, appeal dismissed, 423 US 919; Matter of Hackmyer, 15 Ed Dept Rep 74; Matter of Kopser, 10 id. 238). Therefore, since respondent is not required to cover any of the costs in question, it is within its discretion to provide a percentage of those costs for all students attending outside the district.