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Decision No. 13,953

Appeal of EDWIN RAYMOND, on behalf of AMANDA L. and EDWIN F. RAYMOND, JR., from action of the Board of Education of the Whitehall Central School District regarding transportation.

Decision No. 13,953

(June 10, 1998)

John J. Layden, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Whitehall Central School District ("respondent") denying transportation for petitioner's children to the nonpublic school they attend. The appeal must be dismissed.

Petitioner is a resident of respondent's district. On March 25, 1997 petitioner requested transportation for his children to St. Mary's School in Ticonderoga ("St. Mary's"), the nonpublic school which they attend. Respondent denied petitioner's request on April 9, 1997 on the grounds that petitioner resides more than 15 miles from St. Mary's. Four other families also requested transportation to St. Mary's and respondent similarly denied their requests. This appeal ensued.

Petitioner contends that other students in respondent's district are transported to schools outside the district without regard to the 15-mile limit. Petitioner argues that his children are not being afforded equal protection under the Constitution and should be provided with the requested transportation. He requests a determination that his children are entitled to transportation to St. Mary's and an order directing respondent to provide that transportation.

Respondent contends that the petition should be dismissed as untimely. Respondent also contends that it is not required to transport petitioner's children and that transportation is being provided to students of another nonpublic school because two of those students reside within the 15-mile limit and respondent is required by Education Law to provide such transportation.

The appeal must be dismissed as untimely. An appeal to the Commissioner of Education under "310 of the Education Law must be brought within 30 days of the action complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioner commenced this appeal on September 15, 1997 claiming that respondent refused his transportation request on August 18, 1997. However, respondent's superintendent states, in an affidavit, that he denied transportation for petitioner's children on April 9, 1997. He further states that the discussion at respondent's August 18 meeting did not concern petitioner's previous request, but rather concerned the reaffirmance of respondent's transportation policy. In any event, even if the August 18 meeting could be construed as a review of petitioner's previous request, it would have been in the nature of a reconsideration. Prior Commissioner's decisions have held that a request for reconsideration does not extend the time in which to commence an appeal (Appeal of Ytuarte, 36 Ed Dept Rep 238; Appeal of Goodman, 35 id. 93; Appeal of Regan, 34 id. 72; Appeal of Yip, 25 id. 296; Appeal of Ritz, 25 id. 240). Therefore, the appeal must be dismissed as untimely.

Education Law "3635(1) establishes a dual system of entitlement to transportation services to nonpublic schools. Transportation between a pupil's home and the nonpublic school which the pupil attends must be provided if the distance between such home and school is within the statutorily prescribed limits for such transportation. Although the statute requires a board of education to provide transportation for elementary school pupils between home and school for distances of between 2 and 15 miles and for secondary school pupils between home and school for distances of between 3 and 15 miles, the minimum distance may be shortened and/or the maximum distance may be extended by local district policy after approval by district voters (Education Law "3635[1][a]).

Additionally, transportation may be furnished for certain other pupils attending nonpublic school in accordance with Education Law "3635(1)(b)(i). A school district providing transportation to a nonpublic school for pupils living within the specified distances 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. The statute does not require transportation from centralized pickup points to any nonpublic school to which regular home to school transportation is not already being provided (Matter of Defeis, 34 Ed Dept Rep 408; Matter of Cantone, 22 id. 200; Matter of Safar, 22 id. 93; Matter of Nowak, et al., 22 id. 91).

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 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. When a school district exercises its discretion to provide transportation pursuant to Education Law "3635(1)(b)(ii), the distance from the pickup point to the nonpublic school must not be more than 15 miles.

In this case, there is no evidence that transportation is required pursuant to Education Law "3635(1)(b)(i) or (ii). Respondent contends, and petitioner does not dispute, that petitioner resides 21 miles from St. Mary's and none of the other students who attend St. Mary's reside within the prescribed 15-mile radius. Thus, petitioner's children would not be eligible for transportation under "3635(1)(b)(i). Moreover, petitioner has not established eligibility for transportation for his children under "3635(1)(b)(ii). Particularly, there is no evidence that respondent has transported any students to St. Mary's within the immediately preceding three school years. Accordingly, respondent is not required nor is it authorized to provide the requested transportation services petitioner seeks.

As for petitioner's contention that his children are being denied equal protection because respondent provides transportation to other nonpublic students who live beyond the 15-mile limit, it appears from the record that respondent only provides such transportation to the extent required by Education Law "3635(1)(b)(i). Respondent provides transportation to another nonpublic school from a centralized pick-up point because some of the students attending that school live within the 15-mile limit. Petitioner has not established that similar circumstances exist in regard to St. Mary's.