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Decision No. 13,873

Appeal of JOHN A MOYER, on behalf of MAIA Z. MOYER, from action of the Board of Education of the Salmon River Central School District and Superintendent Michael J. Singleton regarding transportation with a musical instrument.

Decision No. 13,873

(February 20, 1998)

Cantwell & Cantwell, attorneys for respondents, Paul M. Cantwell, Jr., Esq., of counsel

Mills, Commissioner.--Petitioner challenges the refusal of the Board of Education of the Salmon River Central School District (the "board") and Superintendent Michael J. Singleton to allow his daughter, Maia Z. Moyer, a fifth grade student in the district, to transport her alto saxophone to school on the school bus. The appeal must be dismissed.

Maia is learning to play the alto saxophone as part of her regular academic school day program. Since October 1996, Maia has transported her instrument in its case on the school bus to and from school, apparently without incident. Petitioner alleges that on March 11, 1997 his daughter was told by her school bus driver that she would no longer be permitted to carry her instrument on the bus. This was the first indication petitioner had of the existence of any district policy to this effect.

Petitioner wrote to Maia's principal on March 13, 1997, asking for clarification and protesting that he had received no advance notice of the ban, and was thus precluded from making alternative transportation arrangements. The principal did not respond to petitioner's letter. Understandably frustrated, petitioner contacted the board president, who directed him to the superintendent, Michael Singleton. In the interim, petitioner wrote to Mrs. Charlene Dumas of the music department, asking that she provide Maia with any written information about the new policy, and wondering whether a memo had previously been sent that he might have somehow missed. Mrs. Dumas responded that instruments on the school bus had been a problem, but as yet, there was no proposed solution.

On March 20, 1997, following the board president's suggestion, petitioner wrote to Superintendent Singleton, and asked him to address the situation. On March 21, 1997, Dr. Singleton telephoned petitioner at home, but petitioner was at work. That same day, Maia brought home a letter dated March 21 from the district's business manager, Gerald Rufa, addressed "Dear Parent." It notified parents district-wide that the district would not permit students to carry items on the bus which could not fit on their laps. The district listed items which were not allowed on buses to include all musical instruments other than flutes and clarinets, hockey sticks, lacrosse sticks, baseball bats, ski equipment, large equipment bags, large art displays, and "any item(s) of similar size and shape." Mr. Rufa cited Part 721 of the Regulations of the New York State Department of Transportation as authority for the ban.

Petitioner attended the next board meeting on March 24, and spoke against the rule. He asked the board to reconsider its position, and protested that it would prevent students from fully participating in music classes. The board declined to take further action, noting that the "Dear Parent" letter was sufficient. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits of this appeal was denied on May 9, 1997.

Petitioner claims that the district's policy is not authorized by law and is arbitrary and capricious. He also contends that he was not given proper notice of the policy. Respondents claim that the appeal is untimely and that the policy is not only proper, but necessary to protect the health, safety and welfare of students.

As a threshold matter, I find that the appeal is timely. Pursuant to 8 NYCRR "275.16, an appeal to the Commissioner of Education under Education Law "310 must be brought within 30 days of the action complained of (Appeal of Plesko, 37 Ed Dept Rep 238). Respondents argue that the appealable "action complained of" was the bus driver's notification to Maia on March 11, 1997 that she could no longer bring her instrument on the bus. If respondents are correct, this appeal -- which was brought on April 14, 1997 -- would be untimely. However, the bus driver's verbal statement to Maia did not amount to "an official act or decision of any officer authorit[y]" appealable under Education Law "310. Rather, the March 21, 1997 "Dear Parent" letter from Mr. Rufa was the first official act or decision ripe for challenge. Therefore, I find that the April 14 petition is timely, as it was brought within 30 days of Mr. Rufa's letter.

The petition, however, must be dismissed on the merits. Respondents contend that the policy reflected in the March 21, 1997 letter is grounded in law. Section 721.22 of the Regulations of the New York State Department of Transportation supports their contention. It provides that:

Baggage, freight or other property shall not be carried in the aisle or so as to interfere with passenger seating space, safety or comfort. Such property may be carried in suitable baggage racks or baggage compartments.

Section 721.7(a) further provides that the "main aisle and the aisle to a door...shall be unobstructed." Contrary to petitioner's contention, these regulations do, indeed, apply to school buses. Section 721.0(a) clearly states that these provisions apply to all motor vehicles having a seating capacity of more than 22 passengers, operating in this State and "transporting passengers under the age of 21 years, to and from schools, for hire, or owned and/or operated by school districts or any public or private school...." Accordingly, respondents have the authority and, indeed, the duty, to comply with these regulations through the creation and implementation of a district policy.

To survive legal scrutiny, however, such policy must be rational and reasonable and fairly applied to all students in like circumstances. Petitioner contends that the policy is arbitrary because the district could have employed other methods, instead of an outright ban, to ensure safety. He suggests carrying instruments in the underside carrying compartments of the school bus. He also argues that surrounding school districts have no similar ban, even though they transport as many students as respondent.

In my view, the policy, on its face, appears reasonably framed and calculated to ensure compliance with State regulations. It excludes from the bus all items other than those that can be carried on the laps of students, thus ensuring that large items will not block the aisles or doorways, preventing egress in the event of an emergency.

Moreover, the policy does not single out musical equipment and thus impact disproportionately on music students, as petitioner claims. It clearly applies to all objects over a certain size, including sports equipment and academic projects. There is no evidence that respondents are selectively applying the policy to only some students on some buses. Finally, using the underside carrying compartments of the buses to carry oversize objects, as petitioner suggests, does not appear practical, because not all buses are so equipped, and because bus drivers could not simultaneously attend to such compartments and the egress of students. Even petitioner, in his reply, admits the impracticability of using the underside compartments.

The ban on large musical instruments does not mean Maia and her fellow student musicians cannot participate in music classes. I note that respondents have made a reasonable accommodation for music students and band members by allowing them to stay after school from 2:30 p.m. to 3:15 p.m. to practice, presumably vitiating the need to transport instruments home. Bus service is then provided to take music students home at 3:15 p.m. Based upon these facts, I cannot find that this policy is irrational or arbitrary. There is simply no basis in the record before me to interfere with this local board's determination of how best to ensure the safety of its students.

Finally, petitioner contends that he was not provided with proper notice of the new policy. While not grounds for reversal in this case, I agree that respondents could have perhaps handled this matter more skillfully. Petitioner is clearly a caring and involved parent who wants his daughter to have the most enriched and varied educational experience available. His communications with school officials were constructive and evidenced a sincere concern about the possibility of his daughter not being able to participate in music class. The district's abrupt change in policy mid-year, its failure to consult with parents to explore options and assess the impact on students before making its decision, and its means of initially communicating the policy to petitioner through a bus driver, undoubtedly escalated this dispute to unnecessary heights.