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Decision No. 13,859

Appeal of MARY E. CLANCY, on behalf of JORDAN M. CLANCY, from action of the Board of Education of the Menands Union Free School District regarding transportation.

Decision No. 13,859

(February 2, 1998)

Ronald H. Sinzheimer, Esq., P.C., attorney for respondent, Peter J. Molinaro, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Menands Union Free School District ("respondent") to provide late bus transportation for nonpublic school pupils via public, rather than private, carrier. The appeal must be dismissed.

Petitioner is dissatisfied with respondent's use of public transportation for the late bus service provided to nonpublic school students in grades six through eight. Although the petition is not entirely clear, presumably petitioner's son is one of the students affected by respondent's policy. Petitioner contends that under this policy, nonpublic school students are forced to wait in an unsafe area in downtown Troy to transfer from a public transit bus to another bus to bring the students home. According to the petition, students attending respondent's schools are provided with a privately contracted late bus, which transports those students to their home, by more direct routes.

Petitioner alleges that respondent's bus policy is illegal because transportation services should be provided equally to public and nonpublic school students. She also alleges that respondent is endangering the welfare of minors by requiring them to change buses in an allegedly crime-ridden area, and that nonpublic school pupils are being penalized for not attending respondent's schools. Petitioner requests that respondent's transportation policy be examined and corrected.

Respondent asserts that its transportation policy is legal and valid. Respondent contends that its use of public transportation, even if a transfer is required, is acceptable and it has no obligation to provide a private carrier for all students. Respondent states that it would incur prohibitive costs if required to provide private carriers for late transportation from all nonpublic schools.

In accordance with Education Law "3635, a board of education is required to provide transportation to certain students because of the distance between their homes and the schools they legally attend. For purposes of this decision, "late bus" transportation is transportation from the school attended by the students in question to their homes at a time of day later than the time when such transportation is first provided following the end of regular classes.

While school districts are not required to provide late buses for either public or nonpublic pupils pursuant to Education Law "3635, many districts do so to permit students to remain at school after the end of regular classes to participate in additional school-sponsored activities. A school district which adopts a policy of providing late buses must apply such policy consistently and fairly to public and nonpublic school pupils alike (Appeal of Cronin, 15 Ed Dept Rep 114). A district is not required to provide a late bus to every school, and may reasonably deny such service for one or a few students on the grounds of excessive costs (Appeal of Berger, 22 Ed Dept Rep 443; Appeal of Cronin, supra).

A board of education has broad discretion in determining the manner in which transportation under Education Law "3635 will be provided. A board may provide passes for transportation on public transit facilities where transportation between home and school can be provided in that manner (Appeal of Lavin, 32 Ed Dept Rep 249; Appeal of Farrauto, 27 id. 149; Appeal of Kelley, 18 id. 507). The fact that a transfer from one public transit facility to another is required to practically effectuate such student transportation does not invaliate a district's transportation plan (Appeal of Lavin, supra; Appeal of Kelley, supra, Appeal of Reardon, 16 Ed Dept Rep 441). These principles apply equally to late bus transportation.

Education Law "3635 requires that pupils "in like circumstances" receive similar transportation services. Previous decisions regarding late bus transportation have applied this standard to requests for a late bus for a specific activity for which a late bus is being provided to public school pupils participating in that activity and not to "open-ended" requests for late bus service so that pupils may stay at school for any purpose (Appeal of Quinn, 19 Ed Dept Rep 530; Appeal of Cronin, supra; Appeal of Aiello, 16 id. 437). Petitioner argues that respondent is not providing similar late bus transportation services for nonpublic school students that are "in like circumstances" with public school students. However, she offers no evidence to show how this standard applies to her son. Indeed, neither party offers any information as to the types of activities for which late bus transportation is provided for the public school students nor does petitioner indicate what activity her son participates in after regular school hours.

Additionally, it is well established that districts are not required to provide late bus transportation services for individual or unreasonably small groups of students (Appeal of Berger, supra; Appeal of Cronin, supra). A district's legal responsibility to provide transportation includes the mandate to do so in a reasonable and economical fashion. Petitioner has not offered any evidence regarding the number of nonpublic school students at her son's school requiring late bus transportation.

As to petitioner's contention that a particular means of transportation or a possible route is dangerous, prior Commissioner's decisions have held that a child is not entitled to transportation because of an allegedly hazardous route. In Appeal of Lavin, supra, Commissioner Sobol addressed the petitioner's safety concerns relating to use of a public carrier. He stated:

(W)hile I appreciate petitioner's concerns over the safety of her sons, there is always some measure of danger for children who must walk any distance to and from school. In this instance, petitioner stresses the dangers present in an urban setting. Similar arguments could be presented for almost every child who attends school in a city environment. Similar arguments could be advanced for children in suburban or rural settings who must walk along county roads and highways, often without the protection afforded by sidewalks, traffic signals and crossing guards. Unfortunately, danger may exist regardless of the distance or location involved, and the only solution would be to provide door-to-door transportation for all students.

However, the public policy of this State does not require school districts to provide door-to-door transportation, and except in very limited circumstances that are not relevant in this case, the Education Law does not permit eligibility for transportation in individual cases to be determined on the basis of potential hazard. Transportation must be provided on the basis of distance between students' homes and the schools they attend (Matter of Studley v Allen, 24 AD2d 678). There is no obligation imposed upon school districts "to consider the relative hazards in the paths of different children" (Pratt v. Robinson, 39 NY2d 554, 559). As stated in Studley, supra at 678 "the ... yardstick is distance, which is, objectively, readily ascertainable, and not hazard which involves a myriad of factors." Accordingly, petitioner is not entitled to the transportation requested because of the allegedly hazardous route that her sons are required to travel.

I also reject petitioner's contention that respondent has not provided equal treatment because pupils attending public schools are transported by private carriers. The mere fact that some pupils are transported on private buses does not mean that all must be (Matter of Tomasso, 23 Ed Dept Rep 120; Matter of Kelley, supra). As stated in Matter of Kelley, supra at p. 508:

A board of education is required by Education Law "3635 to provide transportation in an economical manner. The convenience of individual pupils may have to yield to a reasonable extent to considerations of efficiency. Use of an existing public transportation system instead of duplicating coverage of similar routes by school buses is one way of reducing the costs of pupil transportation and is neither illegal nor unreasonable.

In an appeal to the Commissioner of Education pursuant to Education Law "310, the petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Samuels 36 Ed Dept Rep 85). Petitioner has failed to meet that burden. Based on the foregoing, I find no evidence that respondent has abused its discretion in the manner in which late transportation is provided for nonpublic school pupils.