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Decision No. 13,949

Appeal of MAURIZIO and JANE AMERI on behalf of their daughter, RACHAEL, from action of the Board of Education of the North Shore Central School District regarding transportation.

Decision No. 13,949

May 29, 1998

Jeffrey F. Pam, Esq., attorney for petitioners

Rains & Pogrebin, P.C., attorneys for respondent, Mark N. Reinharz, Esq. of counsel

MILLS, Commissioner.--Petitioners appeal the refusal of the Board of Education of the North Shore Central School District ("respondent") to provide transportation for their daughter, Rachael, between petitioners' home and the Long Island School for the Gifted ("LISG"), the nonpublic school that Rachael attends. The appeal must be dismissed.

Petitioners requested transportation to LISG for Rachael for the 1996-97 school year. Initially, respondent denied the request on the ground that petitioners, as well as several other LISG students, lived more than 15 miles from that school. Petitioners retained an engineer and submitted a report on November 4, 1996 that showed that one of the other LISG students did, in fact, live within 15 miles of the school. Accordingly, Rachael became eligible for, and respondent began providing, transportation from a centralized pick-up point to LISG.

Thereafter, petitioners, who were unhappy about the supervision respondent provided at the pick-up point, retained the same engineer to measure the distance from petitioners' home to LISG. In December 1996, petitioners submitted to respondent the engineer's determination that the measured distance from their home to LISG was 14.97 miles, and again requested door-to-door transportation for Rachael. On December 18, 1996, respondent's assistant superintendent for business and personnel informed petitioners that he had remeasured the route, found it to be more than 15 miles and denied petitioners' request. On January 16, 1997 petitioners requested that respondent reconsider and reverse that decision. On January 29, 1997 and February 6, 1997, the assistant superintendent wrote letters again notifying petitioners that transportation from their home to LISG would not be provided. Petitioners commenced this appeal on March 6, 1997.

Petitioners contend that respondent's refusal to provide transportation for Rachael from their home to LISG is arbitrary and capricious. Petitioners dispute the accuracy and calibration of respondent's measurement device and allege that respondent's measurement included the perimeter of LISG's parking lot in the total distance, thereby making the total measured distance greater than 15 miles. Petitioners also allege that respondent provides door-to-door transportation for another nonpublic school student even though that student lives more than 15 miles from the nonpublic school. Petitioners ask that I vacate respondent's decision and find Rachael eligible for transportation from her home to LISG or, in the alternative, that I remand the matter back to respondent for a denovo determination.

Respondent contends that the appeal should be dismissed as untimely and for failure to properly serve respondent. Respondent denies providing door-to-door transportation for other students who live more than 15 miles from their nonpublic schools and contends that the student petitioners refer to is receiving additional transportation services that were arranged between the student's parents and the bus contractor, without respondent's involvement. Respondent also contends that petitioners have made similar arrangements for home pick-up for Rachael. Respondent further contends that its decision to deny Rachael transportation from her home to school is not arbitrary, capricious nor an abuse of discretion.

Initially, I will address the procedural issues raised by respondent. Respondent maintains that the appeal is procedurally defective because of improper service. Pursuant to 8 NYCRR "275.8(a), if a school district is named as a party respondent, "service upon such school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service." The record reflects that the petition was served upon the superintendent's secretary. She does not hold one of the positions designated in the regulation, she has not been designated by the board to accept service, and her sworn affidavit states that she did not represent herself as authorized to accept service. Because it appears that petitioner failed to comply with the regulation, the appeal must be dismissed on the ground of improper service.

The appeal must also be dismissed on the merits. Pursuant to Education Law "3635(1), a board of education is required to provide transportation to students residing in the district provided the student resides within 15 miles of the nonpublic school in question, as measured by the nearest available route from home to school. 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 pick-up points, and must provide transportation between such 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 Hinkley, 37 Ed Dept Rep 431; Appeal of Case, 34 id. 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 pick-up point for pupils residing within the district to a nonpublic school located more than 15 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. The record indicates that respondent is providing transportation in accordance with the statute. Based upon respondent's measurements, Rachael lives beyond the 15-mile limit, but another LISG student lives within that distance, thereby enabling Rachel to receive transportation from a centralized pick-up point, which respondent is providing.

Petitioners allege that respondent's calibration and measurement methods are less accurate than that of their own engineer. Upon receiving the measurement of petitioners' engineer, respondent again measured the distance between petitioners' home and LISG. Respondent submits the affidavit of its director of transportation, which states that the route suggested by petitioners was measured three times with a properly calibrated electronic measuring device and each time the distance was greater than 15 miles. His affidavit contains the following measurements, which include measurements made to the property line of LISG.









15.171 Miles

15.305 Miles

15.114 Miles

15.286 Miles


15.175 Miles

15.307 Miles

15.115 Miles

15.286 Miles


15.177 Miles

15.318 Miles

15.135 Miles

15.308 Miles

A board of education is neither required to expend an unreasonable amount of time, effort and money in measuring distances for the purpose of determining eligibility for transportation, nor to make such measurements with the accuracy of a professional survey (Appeal of Jagoda, 34 Ed Dept Rep 154; Appeal of Shah, 31 id. 312; Appeal of Taylor, 26 id. 228). In this case, respondent went to considerable lengths to ensure that its decision was supported by accurate measurements. Petitioners have not established that respondent's measurements are defective. Accordingly, petitioners have failed to establish that respondent acted in an arbitrary, capricious or unreasonable manner in determining that Rachael is not entitled to transportation from home to LISG.

Finally, I find no merit to petitioners' claim that respondent is discriminating against Rachael by providing door-to-door transportation for another student who lives more that 15 miles from his nonpublic school. Respondent's director of transportation, in a sworn affidavit, states that respondent is obligated to provide transportation from a centralized pick-up point for that student because there are other students attending that nonpublic school who live within 15 miles of it. Attached to the affidavit is a copy of his letter to the parents of that student notifying them of the location of that centralized pick-up point. The director of transportation states that the parents made arrangements directly with the bus contractor to provide for their son to be picked up at home. He further states that respondent takes no part in those arrangements and that the same option is available to petitioners. It appears from the record that respondent is uniformly providing transportation in accordance with the Education Law and that Rachael has been afforded the same level of transportation services as other nonpublic school students.