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Decision No. 13,738

Appeal of TERRI L. DeVORE, on behalf of JOHN H. DeVORE, from action of the Board of Education of the Port Jervis City School District regarding transportation.

Decision No. 13,738

(February 25, 1997)

Cuddeback & Onofry, Esqs., attorneys for respondent, Robert A. Onofry, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondent's refusal to modify the transportation arrangements presently provided for her son. The appeal must be dismissed.

Petitioner resides in respondent's district and her son attends the Homestead School, a private school located in Glen Spey. Respondent transports approximately 15 pupils, including petitioner's son, to the Homestead School on a separate bus run. The district has a transportation policy which states that the first pupil picked up in the morning is the first pupil dropped off on the afternoon return run. Petitioner alleges that this policy results in her son's afternoon bus ride being almost 70 miles long and one and one-half to two hours in duration. Specifically, petitioner alleges that the length of the afternoon bus run is due to three children who live in an outlying area and also attend the Homestead School.

Petitioner presented her concerns to respondent at its September 4, 1996 and September 17, 1996 meetings. At those meetings, petitioner requested that respondent alter its "first on, first off" transportation policy or add another bus to the route to shorten her son's ride. Respondent refused both requests.

Petitioner contends that respondent's transportation policy results in an excessive afternoon bus ride for her son. She claims that respondent has made exceptions to this policy in other cases. She also contends that there are several roads traveled by the bus which are dangerous during the winter months. Additionally, petitioner asserts that respondent discriminates against private school pupils because it provides buses for athletic events and to transport pupils who live in excess of 15 miles from school while refusing to supply an additional bus for the daily commute to and from the Homestead School. She also asserts that respondent has rented school buses to the Town of Deerpark for use on certain weekends. Finally, petitioner argues that respondent failed to properly answer her petition.

Respondent contends that it is in compliance with all applicable statutes, rules and regulations, and that its transportation policy is fair and reasonable given the geographical diversity of the district and the fiscal constraints under which it operates. In addition, respondent contends that it applies its transportation policy in a fair and uniform manner.

Respondent also states that the uniformity of the current policy and logistical constraints prevent a separate additional bus run to the Homestead School.

I will first address petitioner's procedural claim. Petitioner contends that respondent improperly served its answer by first class mail in an envelope addressed to petitioner's son. The Commissioner's Regulations provide for service of an answer by either personal service or mail (8 NYCRR 275.8[b], 275.13[a]). Service by mail is completed by depositing the paper enclosed in a postpaid properly addressed wrapper, in a post office or official depository of the United States Postal Service (8 NYCRR 275.8[b]). In this case respondent mailed its answer within the required time period. Accordingly, petitioner's contention of inadequate service due to respondent's use of first-class mail is without merit. With regard to the addressing error, the record indicates that petitioner received the answer and does not allege that any delay occurred because of the error. As petitioner was not prejudiced by the addressing error, I will accept respondent's answer (Appeal of Burke, 34 Ed Dept Rep 3; Appeal of Savastano, 32 id. 326).

The appeal, however, must be dismissed on the merits. Under Education Law '3635, boards of education are required to provide transportation to students under various circumstances. In general, a city school district is not required to provide transportation, but if it does so, such transportation must be provided in an equal manner to all children in like circumstances (Education Law '3635 [1][c]). A board of education has broad discretion to determine how such transportation will be provided (Appeal of Broad, 35 Ed Dept Rep 248; Appeal of Byrne, et al., 34 id. 389; Appeal of Palyo, 33 id. 169; Appeal of Lavin, 32 id. 249). In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of Eats, 29 Ed Dept Rep 481; Matter of Horschel, 24 id. 94). Moreover, a board of education has both the responsibility and authority to implement a transportation policy that balances the safety and convenience of individual pupils with overall economy and efficiency (Appeal of Polifka, 31 Ed Dept Rep 61; Appeal of Cunningham, 28 id. 10). The Commissioner of Education will uphold a district's transportation determination, unless it is unreasonable or an abuse of discretion (Appeal of Polifka, supra; Appeal of Capozza, 25 Ed Dept Rep 15; Appeal of Tomasso, 23 id. 120).

In addition, neither the Education Law nor the Commissioner's Regulations specify maximum time limits for the transportation of students. Indeed, prior Commissioner's decisions have upheld one way student commutes in excess of one and one-half hours (Appeal of Lavin, supra; Appeal of Polifka, supra; Appeal of Capozza, supra; Appeal of a Handicapped Child, 25 Ed Dept Rep 280; Appeal of Rouis, 20 id. 493). There is no legal requirement that a pupil be transported in 90 minutes or less (Appeal of Tomasso, supra).

In this case, petitioner has failed to prove that, under these circumstances, respondent acted unreasonably or abused its discretion in implementing its transportation policy. Petitioner does not provide any details of routes or travel times in her petition to indicate how respondent's policy is unreasonable. Petitioner does not indicate why her son's return trip varies from one and one-half to two hours or how often the trip extends to two hours. She does not offer any evidence to support her contentions that there are dangerous roads along the route or that respondent has made exceptions to its policy.

Moreover, I am unable to find that the district's determination is clearly wrong or an abuse of discretion. The "first on, first off" rule is equally applied to all students. By use of this rule a long trip in one direction is balanced by a shorter trip in the opposite direction. Port Jervis is a relatively rural district which encompasses approximately 75 square miles of territory which includes all of Port Jervis, the Town of Deerpark, and portions of the Town of Forestburgh and the Townships of Mamakating and Mount Hope. Respondent has 48 buses that it uses to transport 2,783 pupils, 151 of whom attend private schools, 85 of whom attend BOCES, and 36 of whom are special education students, with the remainder attending Port Jervis core facilities. There is nothing in the record to indicate that the district's decision to dedicate a separate bus for students at the Homestead School is irrational.

Finally, petitioner fails to show how respondent's decision to rent district school buses to the Town of Deerpark on weekends affects her son's weekday school run. Similarly, she does not indicate how respondent's use of district buses for athletic events or to transport students who live in excess of 15 miles from school affects her son's transportation rights. Petitioner presents no evidence to show that respondent's decisions or policies are unreasonable, arbitrary or capricious, or that they were implemented in a discriminatory manner.