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Decision No. 14,021

Appeal of MARIA C. and MARTIN M. FULLAM, on behalf of GINA M., LAURA M., and JOSEPH M. FULLAM, and ANNE F. and KLAUS P. KRETSCHMER, on behalf of REBECCA A. and ROSIEANNA KRETSCHMER, from action of the Board of Education of the New Paltz Central School District regarding transportation.

Decision No. 14,021

(September 22, 1998)

Shaw & Perelson, LLP, attorneys for respondent, Garrett L. Silveira, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the New Paltz Central School District ("respondent") to transport their children via a central pick-up point. The appeal must be dismissed.

Petitioners reside within respondent's district and their children attend nonpublic schools located within 15 miles from their homes. Respondent transports petitioners' children from neighborhood pick-up points to a centralized pick-up point at the high school where they transfer to another bus which brings them to their respective schools. The process is then reversed for the return trip at the end of each school day.

In prior years respondent utilized a three-tier transportation system that transported high school, middle school and elementary school students separately, but in 1996-97 changed to a two-tiered system whereby the district transports high school and middle school students together. Evidently, under the former system, petitioners' children had a shorter and/or more direct route.

Petitioners contend that respondent's method of transportation discriminates against nonpublic school students. Petitioners allege that nonpublic school students, especially in grades kindergarten through second, have unreasonably long bus rides of up to one and one-half hour in duration. Petitioners also allege that transfers at the pick-up point are dangerous. Petitioners request that I direct respondent to provide transportation services to nonpublic school students that are substantially equivalent to the transportation services provided to students enrolled in the public schools. Petitioners also request that any new transportation plan be modeled on transportation services provided by respondent during the 1993-94 school year.

Respondent contends that the petition should be dismissed as untimely. Respondent asserts that it provides transportation in an economical and efficient method to all students. Respondent states that the change from the three-tier to the two-tier system allowed it to reduce the number of buses from 34 to 29. Respondent contends that only a small number of public and nonpublic students have bus rides in excess of one hour and that it would have to purchase four additional buses, at a cost of $279,000, in order to provide the level of transportation services petitioners request.

The appeal must be dismissed as untimely. An appeal to the Commissioner of Education pursuant to Education Law "310 must be instituted within 30 days of the action complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). 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). Petitioners argue that formal consideration of their request was not addressed until respondent's August 6, 1997 meeting. However, the record shows that petitioners initially asked respondent to change its transportation method for the rest of the 1996-97 school year and the 1997-98 school years by letter dated February 26, 1997. After respondent denied their request at its May 18, 1997 meeting, petitioners, by letter dated June 20, 1997 asked respondent to "reconsider" its decision. Respondent denied petitioners' request for reconsideration at its August 6 meeting. Petitioners did not commence this appeal until September 4, 1997, more than 30 days after respondent's May 18, 1997 decision. Since petitioners' request for reconsideration does not extend the 30-day period, the appeal must be dismissed as untimely.

The appeal must also be dismissed on the merits. Under Education Law "3635, boards of education are required to provide transportation to students under various circumstances. A board of education has broad discretion to determine how such transportation will be provided (Appeal of Broad, 35 Ed Dept Rep 248; Appeal of Byrne, et al., 34 id. 389; Appeal of Palyo, 33 id. 169). In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of Broad, supra; Appeal of Eats, 29 Ed Dept Rep 481; Matter of Horschel, 24 id. 94). Moreover, a board of education has both the responsibility and authority to implement a transportation policy that balances the safety and convenience of individual pupils with overall economy and efficiency (Appeal of Polifka, 31 Ed Dept Rep 61; Appeal of Cunningham, 28 id. 10). The Commissioner of Education will uphold a district's transportation determination, unless it is unreasonable or an abuse of discretion (Appeal of Byrne, et al., supra; Appeal of Polifka, supra; Appeal of Capozza, 25 Ed Dept Rep 15).

In addition, neither the Education Law nor the Commissioner's regulations specify maximum time limits for the transportation of students. Indeed, prior Commissioner's decisions have upheld one way student commutes in excess of one and one-half hours (Appeal of Lavin, 32 Ed Dept Rep 249; Appeal of Polifka, supra; Appeal of Capozza, supra; Appeal of a Handicapped Child, 25 Ed Dept Rep 280; Appeal of Rouis, 20 id. 493). There is no legal requirement that a pupil be transported in 90 minutes or less (Appeal of Tomasso, 23 Ed Dept Rep 120).

In this case, petitioners have failed to prove that respondent has acted unreasonably or abused its discretion in implementing its transportation policy. Petitioners present no evidence that nonpublic school students are being discriminated against nor show how transfer at the central pick-up point is dangerous. The mere fact that respondent uses a variety of means to transport students to and from school (i.e., a single bus, two buses) does not necessarily indicate that students are not receiving equal treatment within the meaning of Education Law "3635. In this case, respondent's transportation policy balances overall efficiency and economy against the individual interests of students. I find no evidence of discrimination in its delivery of transportation services.

Based on the foregoing, I conclude that respondent's decision in this matter is not arbitrary, capricious or unreasonable.