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Decision No. 13,987

Appeal of CAMILLE NICOTRI, on behalf of her children, JEANINE, DANIELLE and CHERI-LYN, from action of the Board of Education of the Middle Country Central School District regarding the denial of bus transportation.

Decision No. 13,987

(August 17, 1998)

Rains & Pogrebin, P.C., attorneys for respondent, David M. Wirtz and Howard M. Miller, Esqs., of counsel

CATE, Acting Commissioner.--Petitioner challenges the decision of the Board of Education of the Middle Country Central School District ("respondent") to deny bus transportation for her three children to a school outside her attendance zone. The appeal must be dismissed.

During the 1996-97 school year, petitioner's three elementary school children, Jeanine, Danielle and Cheri-Lyn, attended fifth grade, third grade and kindergarten, respectively, at the district's Hawkins Path School ("Hawkins Path"). Petitioner’s children’s "home" school, i.e., the school within their attendance zone, is the district's New Lane School ("New Lane").

Petitioner’s oldest child, Jeanine, attended kindergarten and first grade at New Lane, which has an open classroom environment. While Jeanine was at this school she apparently performed poorly, which petitioner believed was due to the open classroom setting. In 1993, petitioner appealed to the district’s Building Alternative Committee to have Jeanine moved to a traditional classroom school. The committee, in a July 19, 1993 letter, granted this request. At that time, the district agreed to permit Jeanine and her younger sister to attend Hawkins Path and to provide transportation to that school. The district provided bus transportation for petitioner's children for the next three academic years. Petitioner’s oldest child showed improvement at Hawkins Path and petitioner was satisfied with this arrangement.

In 1996, respondent adopted a redistricting plan designed to relieve overcrowding in some of the district's elementary schools. Under this new plan, students who were previously attending schools outside of their attendance zones were assigned back to their home schools. The district's superintendent notified petitioner of this plan by letter dated April 26, 1996. This letter also stated that parents with special concerns could request that their children remain in their non-attendance zone schools, and that each request would be evaluated individually. The superintendent met with approximately 80 parents who requested special consideration. At all of those meetings, the superintendent indicated that if the district granted permission for a student to attend a school outside of his or her attendance zone, transportation would not be provided.

After receiving the April 26 letter, petitioner met with the superintendent to request that her two oldest children, Jeanine and Danielle, be allowed to remain at Hawkins Path and that her youngest child, Cheri-Lyn, be allowed to attend kindergarten there in the fall. By letter dated June 5, 1996, the superintendent informed petitioner that her two oldest children would be permitted to attend Hawkins Path for the 1996-97 school year, but that the district would not provide transportation to that school. On August 29, 1996, petitioner received a letter from the district which allowed her to send her youngest child to Hawkins Path for kindergarten, but again denied transportation to that school.

Petitioner telephoned the district clerk on September 23, and October 1, 1996 to request transportation for her children. On October 8, 1996, she called for a final time asking that the school board president call her back, which he never did. On October 9, 1996, petitioner and her husband attended a board of education meeting and requested that the board reconsider their request for transportation to Hawkins Path. At this meeting, petitioner argued that Hawkins Path was approximately 3 miles from her home, and a bus that her children had previously taken to Hawkins Path, stopped two blocks from her house. Respondent did not reply to this request. Petitioner commenced this appeal on January 30, 1997 and requested a stay. Petitioner's stay request was denied on February 27, 1997.

Petitioner contends that the district should provide transportation for her children to Hawkins Path. She claims that her oldest child, Jeanine, was unable to perform academically in the open classroom setting of New Lane, her home school. Petitioner further claims that Jeanine’s test scores improved dramatically once she settled in at Hawkins Path. Petitioner believes that attending Hawkins Path is necessary for Jeanine’s education.

Petitioner has to drive her children to and from Hawkins Path, which necessitates three roundtrips per day due to the children’s different schedules. She states that this is a financial hardship for her family. She maintains that the cost of transportation is included in her school taxes and if the district will not transport her children then she would like a partial refund of those taxes.

Respondent alleges that the petition is untimely as petitioner was informed on June 5, 1996 that her children would not be transported to Hawkins Path but she did not commence this appeal until January 30, 1997. Respondent also contends that the petition itself is without merit since the board has broad discretion to adopt redistricting plans, change attendance zones and to formulate transportation policies. Respondent contends that school districts cannot be compelled to permit students to attend schools which are not within their attendance zones, nor can they be compelled to provide transportation to such schools. As respondent had no legal obligation to grant any exemptions from the redistricting plan, its good faith effort to accommodate petitioner’s concerns should not create a right for her children to be bused to another school.

Additionally, respondent maintains that the bus stop located two blocks from petitioner’s house, from which a bus travels to Hawkins Path, is a special education bus. Respondent asserts that while petitioner's children may have been transported on that bus in previous years, there are no longer three seats available for her daughters.

I will first address respondent's procedural defense concerning the timeliness of this appeal. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioner was informed by letter dated June 5, 1996 that her request for transportation was denied. She was also informed by letter dated August 29, 1996 that her youngest child would not be provided transportation to Hawkins Path. Petitioner, however, did not commence this appeal until January 30, 1997, which was more than 30 days from the letter dated August 29, 1996.

In addition, petitioner’s presentation to respondent on October 9, 1996, was essentially a request for reconsideration of the district’s previous decision. A request for reconsideration of the challenged decision will not extend the time for an appeal to be commenced, (Appeal of Rheaume-Wellenc, 37 Ed Dept Rep 83; Appeal of Regan, 34 id. 72; Appeal of Sponcy, 33 id. 126). In any case, this appeal was not commenced within 30 days of petitioner’s October 9 request.

Petitioner argues that she was unaware of the 30-day time limit for filing an appeal. Except in unusual circumstances, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of Kline, 35 Ed Dept Rep 91). I find no evidence of unusual circumstances in this case. Accordingly, the appeal must be dismissed as untimely.

Although this appeal is dismissed on procedural grounds, I am compelled to make the following observations for respondent’s consideration. Education Law "3635(1) requires that a school district provide transportation for children within the district to and from the school, "they legally attend." Once a district agrees to allow a child to attend another school within the district, this school then becomes the school the child "legally attends." In this case petitioner’s children were given permission by the Building Alternative Committee to attend another school within the district. Thus, Hawkins Path became the school to which the district legally assigned petitioner’s children (See, Appeal of Jongebloed, 16 Ed Dept Rep 385, holding that a district’s attempt to condition a student's transfer upon the parent’s agreement to waive transportation was invalid). Accordingly, respondent should review its policy for conformity with this decision.