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Decision No. 14,230

Appeal of DARLENE DEL VECCHIO and twenty-one similarly situated individuals, on behalf of their children, from action of the Board of Education of the City School District of the City of New York regarding transportation.

Decision No. 14,230

(October 18, 1999)

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Bryan D. Glass, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal from a determination of the Board of Education of the City School District of the City of New York ("respondent") eliminating certain school bus stops. The appeal must be dismissed.

Petitioners are the parents of students attending Eltingville Lutheran School ("Eltingville") a nonpublic school located in Staten Island within respondent's school district. Respondent provides transportation to students attending Eltingville by contracting with a school bus company. Chancellor's Regulation A-801 provides, "where contract school bus service is provided, no bus route shall exceed a total one way route length of 5 miles through all stop points." Prior to the 1998-99 school year, respondent permitted a variance to that limitation for both public and nonpublic schools located on Staten Island. Consequently, students residing more than five miles from the school they attended received bus stop-to-school transportation beyond the limit set forth in Chancellor's Regulation A-801.

By letter dated September 4, 1998, respondent's Office of Pupil Transportation ("OPT") informed petitioner that variances establishing bus stops for students who lived more than five miles from Eltingville would be eliminated. The letter indicated that this decision was made in accordance with the limitation set forth in Chancellor's Regulation A-801. Instead, students living more than five miles from Eltingville were provided with full-fare cards for public transportation to drop off points closer to the school. Respondent provides shuttle service from the points where students disembark from public transportation to Eltingville.

By letter dated September 9, 1998, the principal of Eltingville Lutheran School appealed OPT's decision to the Citywide Committee on Pupil Transportation ("CCPT"). Petitioner DelVecchio also wrote the CCPT to appeal the decision. In a letter to Eltingville's principal dated September 15, 1998, CCPT denied the appeal, finding no compelling reason to alter the transportation respondent is providing. The letter indicated that individual parents having "specific and unique conditions they wish reviewed could bring it to the attention of OPT." This appeal ensued.

Petitioners assert that the elimination of bus stops in excess of five miles from Eltingville adversely affects certain of the students between five and eight years old, as they must travel on public transportation without supervision and disembark in a desolate area to await the connecting bus to school. Petitioners also claim that the public transportation buses are overcrowded with high school students and that their children will be commuting in excess of one hour each way.

Respondent claims the appeal is untimely. Respondent also asserts that its determination is in all respects proper.

I will first address respondent's procedural defense. Section 275.16 of the Commissioner's regulations requires that an appeal be initiated within 30 days of the action or decision complained of. Respondent asserts that the 30 time period should be calculated from the September 4, 1998 letter from respondent's OPT which initially indicated that the bus stops would be eliminated. However, petitioner DelVecchio and the Eltingville principal appealed that decision to respondent's CCPT in accordance with district procedures (See, Appeal of Lucente, 39 Ed Dept Rep __, Decision No. 14,227, dated October 13, 1999). The letter from the CCPT notifying the Eltingville principal of the denial of the appeal is dated September 15, 1998. There is no indication in the record that petitioner received any response to her appeal letter. Thus, I find that the earliest date from which the 30-day period could commence was September 15, 1998. The petition was served upon respondent on October 7, 1998, within the thirty-day period. Therefore, I find the appeal timely.

However, the appeal must be dismissed on the merits. A city school district is not required to provide transportation to students (Education Law "3635[1][c]). Where such district elects to provide transportation, it must do so equally to all students in like circumstances (Education Law "3635[a][c]; Sands Point Academy, et al. v. Bd. of Educ., New York City School District, 63 Misc 2d 276). Moreover, a board of education has broad discretion to determine how such transportation will be provided (Sands Point Academy, et al. v. Bd. of Educ., New York City School District, supra; Appeal of Broad, 35 Ed Dept Rep 248, Decision No. 13,530; Appeal of Byrne, et al., 34 id. 389, Decision No. 13,355). In making that determination, 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 Broad, supra; Appeal of Polifka, 31 Ed Dept Rep 61, Decision No. 12,569; Appeal of Cunningham, 28 id. 10, Decision No. 12,012). A board of education may provide passes for transportation on public transit facilities where transportation between home and school can be provided in that manner (Appeal of Clancy, 37 Ed Dept Rep 280, Decision No. 13,859). 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, Decision No. 11,482).

Moreover, a board of education may exercise its discretion when designating the location of bus stops, provided that the board uses care in exercising such discretion (See, Appeal of Warner, 37 Ed Dept Rep 469, Decision No. 13,907; Appeal of Deleewerk, 37 id. 453, Decision No. 13,903). In establishing school bus stops, a board of education must consider and balance considerations of pupil safety and convenience, routing efficiency and costs (Ossant v. Millard, 72 Misc. 2d 384; Appeal of Rheaume-Wellenc, 37 Ed Dept Rep 83, Decision No. 13,811; Appeal of Marsh, 36 Ed Dept Rep 134, Decision No. 13,680).

In the instant case, respondent acted to comply with the requirements set forth in Chancellor's Regulation A-801 (See, Sand Point Academy, et al. v. Bd. of Educ. New York City School District, supra). The record indicates that respondent carefully reviewed petitioners' safety concerns. In making its determination, respondent considered that: (1) the level of difficulty would not exceed that experienced by other students attending schools via shuttle systems throughout the borough; and (2) the New York City Police Department had not classified any crossing along the students' routes as accident prone. The record also indicates that eligible students were provided with full fare Metrocards to use public transportation to designated pick-up points.

In addition, respondent's determination did not single out the Eltingville Lutheran School, or nonpublic schools generally. In fact, respondent's determination to eliminate bus stop-to-school service beyond the five-mile limit set forth in Chancellor's Regulation A-801 involved at least five Staten Island schools, both public and private, and impacted both elementary and high school students. I note that respondent also has provided parents with the opportunity to appeal their individual cases to determine whether specific safety concerns exist for their children. This consideration exceeds any obligation required by law (See, Pratt v. Robinson, 39 NY2d 554, at 559).

With respect to petitioners' complaint that the students' commute is in excess of one hour each way, neither the Education Law nor the Commissioner's regulations establish maximum time limits for the transportation of children. One way trips exceeding one and one-half hours have been upheld as not excessive (Appeal of Reich, 38 Ed Dept Rep 565, Decision No. 14,094).

Respondent's decision to eliminate the bus stop-to-school bus service at issue here is consistent with the Education Law and Chancellor's Regulations. Respondent has adequately considered factors such as safety and efficiency. Although petitioners are opposed to respondent's decision, they offer no evidence to contest any of the conclusions reached by respondent. Therefore, I find no basis on which to substitute my judgment for that of respondent in this instance.