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Decision No. 14,247

Appeal of BARBARA J. SWANSON from action of the Board of Education of the City School District of the City of Rome regarding transportation.

Decision No. 14,247

(November 12, 1999)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Dennis T. Barrett, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges a determination by the Board of Education of the City School District of the City of Rome ("respondent") denying her request that the district transport certain children between the Ridge Mills School and her family day care home. The appeal must be dismissed.

For several years, petitioner operated a State registered "family day care home" from her residence in the district, where she provided a before-and/or-after-school child care program for pupils attending the former Lake Delta Elementary School. As a result of Lake Delta's closure in July 1997, respondent redrew the district's attendance zones, distributing the students of the former Lake Delta School to the Ridge Mills and Stokes schools.

Prior to Lake Delta's closure, petitioner's property was located entirely within the Lake Delta attendance zone. Her children, and those children for whom she provided day care, all attended that school. After respondent redrew the district's attendance zones, petitioner's property was assigned to the Ridge Mills attendance zone. The north side of petitioner's property, however, bordered the Stokes School's attendance zone.

To ensure that her own children would attend Stokes, the closer of the two elementary schools, petitioner changed her legal address from the south side to the north side of her property. Respondent accepted this change and provided her children with transportation to and from the north side of her lot to the Stokes School.

Petitioner also requested that respondent transport, from the south side of her lot, the children for whom she provided day care to and from the Ridge Mills School (while continuing to transport her children to and from the north side of the lot to the Stokes School). By letter dated October 10, 1997, respondent denied petitioner's request. Responding to petitioner's repeated follow-up requests, respondent reiterated its denial by letters dated December 5, 1997, January 28 and February 5, 1998. Petitioner commenced this appeal on July 15, 1998. Petitioner's request for interim relief was denied on August 5, 1998.

Petitioner alleges that respondent's denial of her request for transportation was arbitrary, capricious and without basis in law. She requests that I advise respondent of its obligation to observe and adhere to all State and local transportation laws and policies and that any violations of such laws and policies be corrected. Petitioner further requests that I admonish respondent's former superintendent of schools and the individual members of respondent board for their "deliberate and intentional disregard of New York State Education Law."

Respondent claims that it is not required, under New York State law, to provide transportation to those children for whom petitioner provided day care; that the appeal is time barred; and that petitioner lacks standing to bring this appeal.

Subsequent to the filing of this appeal, my counsel's office was informed of petitioner's untimely death. Accordingly, this appeal appears to be moot. The Commissioner will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Foshee, 38 Ed Dept Rep 346, Decision No. 14,051). The issue of transporting children to and from petitioner's family day care home lies at the heart of this appeal. Therefore, if the facility formerly operated by petitioner is no longer in operation, the appeal is moot.

The appeal is also untimely. An appeal to the Commissioner of Education must be brought within 30 days of the making of the decision or the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). By letter dated October 10, 1997, respondent's superintendent denied petitioner's request that the district provide transportation to the children for whom petitioner provided day care services. By letter dated January 28, 1998, the superintendent reiterated that his October 10, 1997 decision represented the decision of respondent board. The superintendent again denied petitioner's request by letter dated February 5, 1998. Petitioner commenced this appeal on July 15, 1998, considerably more than 30 days after her requests were denied. Because petitioner offers no legally cognizable excuse for the delay, the appeal must be dismissed as untimely (Appeal of Cannady, 38 Ed Dept Rep 88, Decision No. 13,989).

Petitioner also lacks standing to pursue this appeal. Education Law "3635(1)(e) authorizes a school board to provide students with transportation, subject to certain conditions, to before-and/or-after-school child care locations. Specifically, the law provides: "Transportation may be provided to any child attending grades kindergarten through eight between the school the child legally attends and before-and/or-after-school child care locations upon written request of the parent or legal guardian..." (Education Law "3635[1][e]; emphasis added). The right to request such transportation, therefore, is a right vested in the parents and guardians of the students seeking transportation services. Petitioner's own children did, in fact, receive transportation to their elementary school. As to the children for whom she provided day care services, however, petitioner was not authorized by law to seek transportation on their behalf (Education Law "3635[1][e]). While a petitioner may appeal on her own behalf, she lacks standing to assert the rights of others (Appeal of Cappa, 36 Ed Dept Rep 278, Decision No. 13,724; Appeal of Ulcena, 33 id. 328, Decision No. 13,065). To the extent that petitioner appeals respondent's denial of transportation to the children for whom she provided day care services, her claims are dismissed.

In light of this disposition, I will not address the parties' remaining contentions.