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Decision No. 13,809

Appeal of RONALD V. SANTICOLA from action of the Hunter-Tannersville Central School District and Joseph A. Pezak, Superintendent regarding transportation.

Decision No. 13,809

(August 6, 1997)

Hogan & Sarzynski, LLP, attorneys for respondent, Edward J. Sarzynski, Esq., of counsel

CATE, Acting Commissioner.--Petitioner is a resident of the Hunter-Tannersville Central School District ("district"). He has a child who attends a public school within the district, and he appeals a modification of transportation arrangements by the district which has affected his child. The appeal must be dismissed.

It appears from the record that for several years prior to February 24, 1997, the district provided transportation at the end of the school day from its elementary school to the Marian Center for purposes of religious education, and also provided return transportation. At some time prior to February 24, 1997, it appears that respondent superintendent was made aware of a decision of the Commissioner of Education, Matter of Fitch (2 Ed Dept Rep 394). As a result, on February 24, 1997, the elementary school principal sent a letter to parents of those students who had been using this transportation, including petitioner, advising them that the service would be modified beginning February 28. Parents were required to sign a permission slip which advised them that transportation would continue to be provided to the Marian Center, but that each parent would be responsible for transporting his or her child at the end of each religious education class.

Petitioner then wrote to each member of the board of education and protested this change. Petitioner alleges that at its regular meeting on February 27, 1997, the board of education failed to address his request to nullify the transportation change, and that the change was put into effect on February 28, 1997.

Petitioner couches his appeal in contractual language. He claims that by providing transportation to and from the Marian Center for a number of years, the district has in effect created what he calls a "general contract" with parents of children using the service, and that this "general contract" has been violated by district action. He objects to any change in the transportation scheme without an affirmative vote of the board of education. Petitioner further claims that the termination of the transportation service amounts to a violation of his due process rights.

Respondents generally deny any wrongdoing, rely on the decision of the Commissioner of Education in Fitch, and point out that transportation to the Marian Center has been continued pursuant to Education Law '3635(1)(e).

The appeal must be dismissed. Although petitioner attempts to proceed on a theory of contract, it is clear that there is no such contract, and that the transportation previously provided was authorized pursuant to the board of education's understanding of its rights and responsibilities under Education Law '3635.

Curiously, petitioner makes a claim that his due process rights have been violated, yet objects to the district's citation of Matter of Fitch (2 Ed Dept Rep 394), which provided as follows:

A school district is not authorized to provide transportation to and from religious instruction classes held at churches, temples or parochial schools under a released time religious instruction program since it would be a violation of article XI, section 4 [now section 3], of the Constitution of the State of New York which prohibits the use of public money or property, directly or indirectly, in aid or maintenance of any school or institution of learning wholly or partly under the control or direction of any religious denomination, or in which denomination tenets are taught.

Apparently petitioner believes that the district's citation of that appeal somehow violates the principle often recited in decisions of the Commissioner of Education that an appeal is not the appropriate forum for litigating novel questions of constitutional law, see, e.g., Application of Ware, et al., 28 Ed Dept Rep 415. However, the district's citation of Fitch, a decision made 34 years ago, as an explanation for its action, can hardly be deemed a "novel question of constitutional law."

Although petitioner claims that all parents whose children used the service should have been consulted, that the board should have voted affirmatively to change the arrangements, and even that a majority of those parents whose children use the service were required to consent to the change, he has cited no authority for these propositions. Even if I were to assume that petitioner had some sort of property interest which was affected by this change, petitioner has neither claimed nor cited any authority for the need of a pre-change hearing.

I find that the district was correct in terminating the return transportation from the Marian Center to its elementary school. Because there has been no challenge to the continuation of transportation to the Marian Center, I express no opinion on the correctness of that decision.