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Decision No. 14,376

Appeal of GENE RAYMOND and SANDRA RAYMOND, on behalf of VICTORIA RAYMOND and NICOLE RAYMOND, from action of the Board of Education of the Minisink Valley Central School District regarding transportation.

Decision No. 14,376

(May 26, 2000)

Laurence A. Clemente, P.C., attorney for petitioners

Shaw & Perelson, LLP, attorneys for respondent

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Minisink Valley Central School District to change the transportation pick-up point for their children. The appeal must be dismissed.

Petitioners and their children, Victoria and Nicole, reside on County Route 22 within respondent's district. Beginning with the 1994-95 school year and through the 1998-99 school year, respondent picked up the children at petitioners' residence. Respondent states that this was done pursuant to a district procedure allowing for, at the parent's request, the pick-up of children at their residence rather than at the designated pick-up point, provided that no other children are on the bus at the time the stop is made and the residence is a safe location. Respondent refers to such stops as "temporary stops" and states that at the time it picked-up petitioners' children at petitioners' residence, the "Reyer residence" was in fact the designated pick-up point.

In August 1999, petitioners were notified that the designated transportation pick-up point for their children would be located at the "Hernandez residence", which is on the opposite side and between 334 (respondent's estimate) to 450 (petitioners' estimate) feet further down County Route 22 from petitioners’ residence.

In response to petitioners' request for reconsideration of the designation of the pick-up point, respondent's director of transportation reviewed the designated stop and determined it to be appropriate and within district guidelines. Petitioners then asked respondent's superintendent to review the transportation director's determination. The superintendent arranged for the board transportation committee, comprised of three members of respondent board, as well as the district’s assistant superintendent for business and director of transportation, to visit the sites on September 13, 1999. The transportation committee determined that the designated pick-up point at the Hernandez residence was safe, appropriate and within district guidelines and recommended that respondent deny petitioners' request to relocate the pick-up point to petitioners’ residence or establish an additional pick-up point at petitioners' residence. By letter dated September 24, 1999, the superintendent notified petitioners of respondents’ determination that the Hernandez residence would remain the designated pick-up point for petitioners' children.

Petitioners commenced this appeal on October 20, 1999, by personal service of a copy of the petition on respondent's superintendent. Petitioners contend that the Hernandez residence pick-up point constitutes a potential health and safety hazard to their children and respondent's designation of such site contravenes district transportation guidelines. They request that I reverse respondent's designation of the Hernandez residence as the pick-up point for their children and direct respondent to reinstitute the previous pick-up point at petitioners’ residence.

Respondent denies petitioners' allegations and contends that its designation of the Hernandez residence as the pick-up point is reasonable, rational and consistent with district guidelines.

Before proceeding to the merits, I must address a procedural issue. Respondent objects to the scope of petitioners' reply to its answer. The purpose of a reply is to respond to procedural defenses or new material contained in an answer, and is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been part of the petition (8 NYCRR ""275.3 and 275.14; Appeal of Razzano, 38 Ed Dept Rep 782, Decision No. 14,142). The rationale for this procedural rule is that it is necessary to ensure an orderly framing of the issues (Matter of a Handicapped Child, 24 Ed Dept Rep 41, Decision No. 11,308). Accordingly, I will not consider those portions of the reply that constitute new allegations or evidence which is not responsive to new material or affirmative defenses set forth in the answer. Moreover, as discussed below, even if I were to consider this proof, it would not alter my conclusions concerning the merits of petitioners' appeal.

A board of education may exercise its discretion when designating pick-up and drop-off points, provided that the board uses reasonable care in exercising such discretion (Appeal of Hobbs, 38 Ed Dept Rep 203, Decision No. 14,015; Appeal of Kaufman, 36 id. 45, Decision No. 13,650). In establishing a pick-up point, a board of education must balance considerations of pupil safety and convenience, routing efficiency and costs (Appeal of Hobbs, supra; Appeal of Marsh, 36 id. 134, Decision No. 13,680; Appeal of Krauciunas, 35 Ed Dept Rep 107, Decision No. 13,480).

Petitioners make no specific allegations that the designated pick-up point at the Hernandez residence is itself unsafe or hazardous, but instead allege that the portion of County Route 22 between their residence and the designated pick-up point at the Hernandez residence, which their children would have to walk to reach the pick-up point, has a very deep swale or drainage ditch located on each side and virtually no shoulder and constitutes a potential hazard from the vehicular traffic using the busy county highway.

Education Law "3635 does not require door-to-door transportation and boards of education have discretion to require students to walk to pick-up points from which transportation will be provided (see, Ossant v. Millard, 72 Misc 2d 384; Appeal of Marsh, supra). Where a student's home is on a dangerous road or at a remote location, the parents are not free from an obligation to assist the student in reaching the pick-up point (Appeal of DiNapoli, 38 Ed Dept Rep 269, Decision No. 14,030; Appeal of Warner, 37 id. 469, Decision No. 13,907; Appeal of Kaufman, supra). It is the responsibility of the parent, not the district, to see that the child safely reaches the pick-up point (Appeal of DiNapoli, supra; Appeal of Rheaume-Wellenc, 37 Ed Dept Rep 83, Decision No. 13,811; Appeal of Warner, supra).

Petitioners attempt to submit in their reply and in a "Sur Reply" evidence concerning the traffic frequency and density on County Route 22 and the depth of the drainage ditch. This information directly relates to petitioners' burden to establish the facts upon which petitioners seek relief (8 NYCRR "275.10; Appeal of Robert D. and Barbara D., 38 Ed Dept Rep 18, Decision No. 13,975) and should have been included in the petition, as discussed above.

Furthermore, it appears from new information presented in the affidavit of respondent's assistant superintendent for business and petitioners' Sur Reply that in November 1999, after this appeal was commenced, the shoulder on petitioners' side of the portion of County Route 22 between petitioners' residence and the Hernandez residence was substantially widened by the Orange County Department of Public Works. While petitioners allege that the shoulder on the opposite (Hernandez) side of the road remains unchanged, in view of this new information I am unable to determine from the record before me whether the portion of County Route 22 in issue currently presents unsafe or hazardous conditions.

Regardless, even if I accept, for purposes of argument, petitioners' assertions concerning the traffic conditions on Route 22 and the condition of the drainage ditch, it does not alter my conclusion, pursuant to the above-cited authority, that petitioners, and not the school district, have an obligation and responsibility to assist their children in safely reaching the designated pick-up point.

Petitioners also contend that respondent's designation of the pick-up point contravenes district transportation guidelines. Petitioners specifically cite the following provision from the district's regular transportation policy: "In establishing bus stops, student safety shall be the major consideration and then proximity to the child's residence to the benefit of all children affected by a specific stop." However, I note that the policy also provides that: "The transportation requirements of all students will be considered for the efficient operation of the system as a whole. Effort shall be made to designate locations which are within a 1/2 mile walking distance of the student's residence. Generally, buses will not stop within 2/10 of a mile of the previous stop. Exceptions may be made in cases of extreme extenuating circumstances."

It appears from the affidavit of respondent's assistant superintendent for business that both petitioners' residence and the Hernandez residence were reviewed and considered as potential pick-up points and found to be within the district's safety guidelines. However, the Hernandez residence was ultimately designated because it is located further from a bend in the highway, has a better sight distance and because it would not be reasonable, economical or efficient to add a bus stop at petitioners' home, in addition to the Hernandez stop, since the distance between the two stops would be considerably less than the .2 miles indicated in the district's transportation policy. Based upon the record before me, I do not find that respondent has acted inconsistent with its policy.

While I am sympathetic to petitioners' concerns about their children's safety, there is no legal basis to overturn respondent's decision. The safety of children between home and the properly designated transportation pick-up point is the responsibility of parents, not the district (Appeal of DiNapoli, supra; Appeal of Rheaume-Wellenc, supra; Appeal of Warner, supra).

Based upon the record before me, I do not find that respondent's designation of the pick-up point in question is arbitrary, capricious or unreasonable.