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Decision No. 13,934

Appeal of ANDRENEE P. SMITH, on behalf of MATTHEW T. SMITH and MICHAEL T.A. SMITH, from action of the Board of Education of the Amherst Central School District regarding transportation.

Decision No. 13,934

(May 6, 1998)

Linda L. Kaumeyer, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Amherst Central School District ("respondent") refusing to transport her son, Michael, to a nonpublic pre-kindergarten program. The appeal must be dismissed.

Petitioner is the mother of two boys: Matthew, who is seven years old, and Michael, who is not yet five years old. On July 27, 1997, petitioner requested that respondent transport Matthew to St. John Christian Academy ("St. John"), the nonpublic school he attends, during the 1997-98 school year. Respondent approved petitioner’s request for transportation.

On September 9, 1997, petitioner requested that respondent also transport her younger son, Michael, to St. John. In support of her application, petitioner submitted a birth certificate evidencing that Michael was born on May 29, 1992. Suspecting that the certificate had been altered, respondent inquired further and learned that Michael, who was enrolled in the pre-kindergarten program at St. John, was born on May 29, 1993, and, thus, would not become five years old until May 29, 1998. On September 23, 1997, respondent’s attorney notified petitioner that Michael was not eligible for transportation for the 1997-98 school year because he would not be five years old by December 1 of that year.

It appears that, after receiving this notification, petitioner transported both Matthew and Michael to St. John, even though bus transportation for Matthew was available. Respondent awaited further notification from petitioner and, in the interim, made no further attempts to transport Matthew.

On October 21, 1997, petitioner appealed the district’s denial of her application to respondent. She also complained that she should be reimbursed the costs of transporting both children to school as of September 23, 1997.

Respondent considered petitioner’s request and, by letter dated November 5, 1997, notified petitioner that her request was denied. Respondent based its denial on its policy of refusing transportation to every child, whether attending a public or nonpublic school, who is not old enough to be admitted to the district’s schools. In order to be admitted to a school in respondent’s district, a child must be five years old on or before December 1 of the school year for which admission is sought and Michael will not be five until May 29, 1998. Respondent also informed petitioner that it would continue to offer transportation for Matthew, but would not reimburse her for the costs of such transportation because this would, in effect, require the district to pay twice for the same service.

Petitioner commenced this appeal on December 5, 1997 contending that respondent’s decision is arbitrary and capricious. Respondent requests that the appeal be dismissed because its decision was proper in all respects. Respondent also raises several procedural defenses, which I will address before reaching the merits.

Respondent contends that the petition should be dismissed because it is not verified, as required by 8 NYCRR "275.5. While respondent’s copy of the petition may not be verified, the record before me reveals that a verification, dated December 11, 1997, was submitted separately to my Office of Counsel. Therefore, I will not dismiss the appeal on that basis (Appeal of Moravia Teachers’ Association, 36 Ed Dept Rep 413), particularly where respondent has shown no resultant prejudice (see, Appeal of Chaplin, 30 Ed Dept Rep 420).

Neither will I dismiss the petition, as respondent requests, for failure to state clearly the nature of petitioner’s claims. Section 275.10 of the Commissioner’s regulations provides that a petition shall contain a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems herself entitled. Such statement shall be sufficiently clear to advise the respondent of the nature of the petitioner’s claim and of the specific act or acts of which she complains.

Although perhaps inartfully drafted, the allegations contained in the petition are apparent. Petitioner alleges that, despite the age of her child, Michael is entitled to be transported by respondent to the nonpublic school in question. The petition contains a specific prayer for relief, and requests the intervention of the Commissioner. Accordingly, I find that it is sufficient. Furthermore, where, as here, petitioner is not represented by counsel, a liberal interpretation of the regulations is appropriate, particularly where there is no evidence of prejudice to respondent (Appeal of Loughlin, 35 Ed Dept Rep 432; Appeal of Roxbury Taxpayers Alliance, et al., 34 id. 576; Appeal of Moessinger, 34 id. 246). Moreover, respondent has adequately addressed the allegations in its answer (see, Appeal of Phillips, 37 Ed Dept Rep 204; Appeal of Priestley, 35 id. 293).

The appeal, however, must be dismissed on the merits. In Gorman v Tilles, USDC EDNY, Docket No. 79 C 1865, decision dated 8/22/79 (Pratt, J.), the court ruled that it was a violation of the Establishment of Religion Clause of the First Amendment to the United States Constitution for a board of education, which does not admit to the public schools children who become five years old after December first of a given school year, to provide transportation, health and welfare services or other benefits to children who become five years old after December first of a given school year and who attend nonpublic schools. Here, respondent does not admit to its public schools children under five years old, or children who will not be five on or before December 1 of the admission year. Thus, under Gorman, supra, respondent may not transport Michael to a nonpublic school because he is too young to attend the public schools of the district (Appeal of Meyers, 27 Ed Dept Rep 324; Appeal of Stickley, 25 id. 276).

Petitioner contends that, inasmuch as respondent already transports several other students to St. John, its denial of transportation is arbitrary and capricious because Michael could be transported on the existing bus route without additional inconvenience. However, although there may be a bus available, respondent lacks 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, et al., 27 id. 295). Accordingly, I find that respondent’s determination was neither arbitrary nor unreasonable.

Finally, in view of my determination that Michael is not entitled to transportation, respondent is not required to reimburse petitioner for the costs associated with transporting Michael (cf., Appeal of Cornerstone Christian School, et. al., 30 Ed Dept Rep 452; Matter of Rocca, 23 id. 244). Nor should petitioner be reimbursed for transporting Matthew through January 5, 1998, because transportation was made available during that time.

Under the circumstances of this case, I am constrained to dismiss the appeal.