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Decision No. 14,127

Appeal of JOSEPH G. SCALI, on behalf of CAROLINE H. SCALI, from action of the Board of Education of the Chappaqua Central School District regarding transportation.

Decision No. 14,127

(May 8, 1999)

Shaw & Perelson, LLP, attorneys for respondent, Stephen Perelson, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Chappaqua Central School District ("respondent"), denying transportation to his daughter because she resides more than 15 miles from the nonpublic school she attends. The appeal must be dismissed.

On March 10, 1998, petitioner, who resides in the Chappaqua Central School District, requested that respondent transport his daughter, Caroline, to the Fieldston School ("Fieldston"), a nonpublic school located more than 15 miles from her residence. No other students in the district currently attend Fieldston, and no students have been transported to that school in the past. By letter dated May 27, 1998 respondent's transportation office denied petitioner’s request. This appeal ensued.

Petitioner maintains that respondent provides home to school transportation for two other students who live more than 15 miles from the nonpublic school they attend. The two students attend the Masters School ("Masters") in Dobbs Ferry; one lives 17.6 miles, and the other 18 miles from the school. Petitioner alleges that his daughter is in like circumstances to these students. He claims, therefore, that respondent treats his daughter unequally by refusing to provide her transportation.

Respondent maintains it is undisputed that petitioner’s daughter lives more than 15 miles from the nonpublic school she attends. Thus, respondent maintains petitioner’s daughter is ineligible for transportation. Respondent further claims petitioner’s daughter is not "in like circumstances" to the three students it transports to Masters. One of the three students who attend Masters lives 14.6 miles from the school. Therefore, respondent maintains it is required to provide transportation to all three students.

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]). In this case the voters have not elected to extend the maximum distance beyond 15 miles.

Additionally, transportation may be furnished for certain other pupils attending a 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 (Appeal of Raymond, 37 Ed Dept Rep 670; 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 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 more than 15 miles from Fieldston and no other students from the district attend Fieldston. Thus, petitioner's daughter is not eligible for transportation under "3635(1)(b)(i). Moreover, petitioner has not established eligibility for transportation for his daughter under "3635(1)(b)(ii). Particularly, there is no evidence that respondent has transported any students to Fieldston within the immediately preceding three school years. Accordingly, respondent is not required nor is it authorized to provide the requested transportation services petitioner seeks.

Finally, I note that the record indicates that respondent provides transportation for two Masters students who reside in excess of 15 miles from that school. Although these students are eligible for transportation from a centralized pickup point pursuant to Education Law "3635(1)(b)(i), they are not eligible for transportation from home to Masters. Respondent argues it is more efficient to transport these students in this manner. However, even if I accept this argument the statute only permits the transportation of these students from a centralized pickup point. Respondent should review its policy accordingly.