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Decision No. 14,341

Appeal of MARY PALLOS, on behalf of JUSTIN and JACQUELINE PALLOS, from action of the Board of Education of the Schalmont Central School District regarding transportation.

Decision No. 14,341

(April 25, 2000)

Whiteman, Osterman & Hanna, Esqs., attorneys for petitioner, Karen E. Sosler, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Norman H. Gross, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Schalmont Central School District ("respondent") to provide transportation for her son from his home to a centralized pick-up point at respondent's high school. The appeal must be dismissed.

Petitioner and her children reside in respondent's school district. Petitioner's daughter, Jacqueline, is five years old and attends St. Helen's School. Petitioner resides within 15 miles of St. Helen's. Petitioner's son, Justin, attends Christian Brothers Academy ("CBA"), a nonpublic school located more than 15 miles from petitioner's home.

At the beginning of the 1999-2000 school year, respondent provided transportation for petitioner's children whereby a bus picked both Jacqueline and Justin up at their home and drove to respondent's high school, a designed centralized pick-up point for students attending CBA. At the high school, Justin transferred to a bus traveling to CBA, while Jacqueline remained on her bus and was transported to St. Helen's School.

In October 1999, respondent altered the transportation arrangement due to the fact that it caused CBA students to arrive late to school. As a result, a bus continued to pick Jacqueline up at her home, stop at the district's high school as a pick-up point for students attending other nonpublic schools and continued on to drop Jacqueline at St. Helen's. However, respondent discontinued transporting Justin from home to the high school on that bus. Instead, to ensure timely arrival at CBA, Justin was required to be at the high school pick-up point at 6:50 a.m. so that an earlier bus could transport students to the nonpublic school. As a result, petitioner is required to drive Justin to the high school pick-up point to get the 6:50 a.m. bus, while Jacqueline remains at home and is picked up there at 7:05 a.m. Upon notification of the new transportation arrangement, petitioner requested reinstatement of Justin's transportation from home, but respondent refused that request. This appeal ensued.

As part of her appeal, petitioner sought an interim order directing respondent to continue to pick both of her children up at her home pending a determination of this appeal. By letter dated November 12, 1999, petitioner's request was denied.

Petitioner challenges respondent's revised transportation arrangement. She claims that it impermissibly creates an unsafe situation for her daughter, in that Jacqueline must remain at home alone to be picked up at 7:05 a.m., while petitioner is required to drive Justin to the high school to meet the 6:50 a.m. bus to CBA. Petitioner also argues that respondent provides school to home transportation for Justin in the afternoon and, therefore, respondent should provide transportation from Justin's home in the morning.

Respondent asserts that the provision of transportation to petitioner's children is both reasonable and in compliance with the requirements of law.

Education Law "3635(1)(a) requires boards of education to provide transportation to and from the school a student legally attends. Where a student is enrolled in a nonpublic school located more than 15 miles from his home, the board of education may designate a centralized pick-up point from which to transport the student to the nonpublic school (Education Law "3435[1][b]). It is the parent's responsibility to transport the student from home to the pick-up point (Appeal of Kelsey, 38 Ed Dept Rep 396, Decision No. 14,063). There is no dispute that petitioner's home is more than 15 miles from CBA. Therefore, the requirement that Justin be transported from the high school as a centralized pick-up point, and that petitioner transport him to the pick-up point, is entirely within the requirements of law. Respondent is not required to provide home to school transportation for Justin.

Moreover, a board of education has broad discretion to determine how transportation should be provided (Appeal of Reich, 38 Ed Dept Rep, 565, Decision No. 14,094; Appeal of Maria C., 38 id. 227, Decision No. 14,021). The Commissioner of Education will uphold a district's transportation determination unless it is arbitrary, unreasonable or an abuse of discretion (Appeal of Reich, supra; Appeal of Maria C., supra; Appeal of Corcoran, 36 Ed Dept Rep 324, Decision No. 13,737). The record indicates that respondent set an earlier time for students such as Justin to arrive at the centralized pick-up point for transportation to CBA because that school changed to an earlier starting time, and respondent wished to ensure that students arrived at CBA on time. A transportation scheme that consistently delivers students late to nonpublic schools and on time to public schools is not reasonable (Appeal of Hacker, 28 Ed Dept Rep 141, Decision No. 12,058; Appeal of Jeffers, 26 id. 408, Decision No. 11,804). Accordingly, it was reasonable for respondent to change its transportation schedule so that students would consistently arrive on time at CBA.

Petitioner alleges that, because of respondent's current transportation schedule, she must transport her son to the centralized pick-up point established for CBA students, while leaving her daughter to wait for the bus at home at the bus stop. In essence, petitioner contends that where a school district's transportation arrangements require a parent to transport one child to a pick-up point while a younger sibling remains home alone at a bus stop, the arrangement is hazardous perse so as to be arbitrary or unreasonable. However, there is no legal basis for petitioner's claim. The fact that young children are required to wait at a bus stop alone is not hazardous perse, so as to require respondent to provide alternative transportation arrangements. Moreover, even if hazard were demonstrated here, the Education Law does not require or permit eligibility for transportation to be determined on the basis of hazard (Pratt v. Robinson, 39 NY2d 554; Appeal of Clancy, 37 Ed Dept Rep 280, Decision No. 13,859).

Based on the record before me, I find that respondent's denial of petitioner's request for transportation for Justin from home to the designated centralized pick-up point for transportation to CBA was reasonable under the circumstances, and in compliance with law.