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Decision No. 13,897

Appeal of ROXANN M. HINKLEY, on behalf of her son, KEVIN A. HINKLEY, from action of the Board of Education of the Holley Central School District regarding transportation.

Decision No. 13,897

(March 23, 1998)

Heath & Martin, attorneys for respondent, Jeffrey R. Martin, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Holley Central School District ("respondent"), which denied transportation to her son because he resides more than fifteen miles from the nonpublic school he attends. The appeal must be dismissed.

On March 28, 1997, petitioner, who resides in the Holley Central School District ("district"), requested that respondent transport her son, Kevin, to the Notre Dame High School, a nonpublic school located 20.8 miles from his residence. Currently, four other students residing in the district also attend Notre Dame. Each student resides more than fifteen miles from the school and none is transported by the district.

On August 19, 1997, respondent denied petitioner’s request and this appeal ensued.

Petitioner maintains that respondent’s decision was arbitrary and capricious and failed to treat, equally, all children "in like circumstances". She contends that, on August 19, 1997, respondent voted to transport a "non-student district resident" to a BOCES facility based on a finding that the bus was already traveling to the facility and that the district would not incur any additional expense by transporting this child. Additionally, petitioner maintains that respondent currently transports, to the St. Mary’s High School in Batavia, New York, another pupil who, admittedly, lives within the fifteen-mile statutory distance from St. Mary’s. Petitioner argues that, inasmuch as St. Mary’s is located in close proximity to Notre Dame, and, among other things, shares with Notre Dame a common school parking lot, a German language instructor, the same religious chapel, a common structural design and meal preparation, both are, in effect, "one school." Finally, petitioner contends that respondent would incur no additional expense to transport Kevin to Notre Dame because the district would not have to alter its existing bus schedule to accommodate him.

Respondent contends that its decision was proper in all respects. It maintains further that inasmuch as Notre Dame is an independent high school and St. Mary’s is a parish school, both are separate and distinct educational institutions, and, thus, under Education Law "3635, it had no authority to grant petitioner’s request for transportation.

I have considered petitioner’s arguments and find them unpersuasive. Education Law "3635(1)(a) requires the district to transport all children residing in the district, who attend grades kindergarten through twelve, "up to a distance of fifteen miles, the distances in each case being measured by the nearest available route from home to school." A board of education of a central or union free school district may provide transportation for a greater distance than that required by statute but only with the approval of district voters (Appeal of Robert G., 32 Ed Dept Rep 60; Appeal of Hannan, 28 id. 456). Further, under the statute, transportation that is provided by the district for a distance greater than fifteen miles, "shall be offered equally to all children in like circumstances residing in the district."

In this case, the district has not elected to extend transportation beyond the fifteen-mile radius established by "3635(1). Although it appears that respondent has furnished such transportation to a BOCES pupil, I note that this child is not in like circumstances to petitioner’s son. It has consistently been held that transportation of a student to a BOCES facility pursuant to Education Law "1950(4)(q) is not governed by the mileage limits of "3635, and students receiving such transportation are not in like circumstances to students receiving transportation pursuant to "3635 (Matter of Antonucci, 21 Ed Dept Rep 93; Matter of Joyce, 14 id. 350; Matter of Frandsen, 11 id. 203). Consequently, I find no merit to petitioner’s contention that Kevin is being treated differently from other children similarly situated.

However, transportation may be furnished for certain other pupils attending a nonpublic school in accordance with Education Law "3635(1)(b)(i) and (ii). Pursuant to Education Law "3635(1)(b)(i), a school district providing transportation to a nonpublic school for pupils living within the specified 15-mile distance from such school must designate one or more public schools as centralized pickup points, and must provide transportation between such pickup points and such nonpublic school for pupils residing too far from the nonpublic school to qualify for regular transportation between home and school (Appeal of Case, 34 Ed Dept Rep 438; Appeal of Defeis, 34 id. 408; Matter of Cantone, 22 id. 200). Education Law "3635(1)(b)(ii) further states that a board of education "may, at its discretion," provide transportation from a centralized pickup point for pupils residing within the district to a nonpublic school located more than fifteen miles from the home of any such pupil, provided that transportation has been provided to the nonpublic school in at least one of the immediately preceding three school years.

In this case, there is no evidence that transportation is required pursuant to Education Law "3635(1)(b)(i) or (ii). In the first place, none of the other four students attending Notre Dame reside within the prescribed 15-mile radius. Thus, petitioner’s son would not be eligible for transportation under "3635(1)(b)(i). Neither is he eligible for transportation under "3635(1)(b)(ii). Respondent attests, and petitioner does not dispute, that respondent has not transported a student to the Notre Dame High School within the immediately preceding three school years. The fact that a student is transported to the neighboring St. Mary’s High School, constitutes an insufficient reason to deem petitioner’s son eligible for transportation under that section. Accordingly, respondent is neither required nor authorized to provide transportation services under Education Law "3635.

Finally, petitioner contends that respondent's denial of transportation is arbitrary and capricious because her son could be transported on an existing bus route to the nonpublic school in question without additional cost or inconvenience. However, eligibility for transportation under "3635 is determined on the basis of the distance between a child's home and the school he attends (Education Law "3635[1]; Matter of Studley v. Allen, 24 AD2d 678 [3d Dept 1965]). Although there may be a bus available, boards of education lack the authority to transport students who are ineligible for transportation, notwithstanding the fact that there may be room on the bus for them (Appeal of Kluge, 31 Ed Dept Rep 107; Appeal of Duek, 28 id. 7; Appeal of Pavony, 27 id. 295).