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Decision No. 14,442

Appeals of DENISE BANK, on behalf of HALLEN KORN; VINCENT J. CATALANO, on behalf of MARIE CATALANO; OREN S. CLARK and BRONWYN M. BEVAN, on behalf of AIDAN BEVAN CLARK; VINCENT and SHEILA DeBIASE, on behalf of NOAH DeBIASE; ELYSE ETTINGER, on behalf of IAN and ZOE ETTINGER; BARBARA HENSZEY and MITCHELL MARKAY, on behalf of LACHLAN and GRIFFIN MARKAY; STEPHANY HITCHCOCK, on behalf of NICOLAS CAPRON-MANIEUX; MARIA B. KAYAL, on behalf of TINA and HEATHER KAYAL; DIANE S. LEIBER, on behalf of MAX B. LEIBER; SANDRA MOORE, on behalf of JACOB and LUCAS MOORE; CYNTHIA B. NELSON, on behalf of JOCELYN and ZOE NELSON; WENDY R. PARISH, on behalf of MAX PARISH SHPILMAN; CARL PARRIS, on behalf of RIANA MORING-PARRIS; JAMES and ABBY SAXON, on behalf of TYLER SAXON; JAMES A. STEINBERG and LYNN ITZKOWITZ, on behalf of ALEXIS STEINBERG; and DEAN VALLAS and DEBRA PEMSTEIN, on behalf of SOPHIE VALLAS, from action of the Board of Education of the Rhinebeck Central School District regarding transportation.

Decision No. 14,442

(August 23, 2000)

Vincent J. Catalano, Jr., Esq., attorney for petitioners

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

CATE, Acting Commissioner.--Petitioners each appeal the determination of the Board of Education of the Rhinebeck Central School District ("respondent") denying their requests to transport their children to a nonpublic school for the 2000-2001 school year. Since the appeals concern the same issues of law and fact, they are consolidated for decision. The appeals must be dismissed.

Petitioners reside in respondent's district. The children of thirteen petitioners currently attend the Poughkeepsie Day School ("PDS"), a nonpublic school located at 140 Boardman Road in Poughkeepsie. Three petitioners have children who will attend PDS beginning in the fall of 2000. All petitioners concede that the distance from their respective homes to PDS exceeds 15 miles. The mileage distances between the homes and school range from 16.5 to 23 miles.

By letter dated April 13, 2000, respondent informed each petitioner that it would not provide transportation to PDS for the 2000-2001 school year. Respondent explained that it had been erroneously transporting students to PDS for the last several years because it was unaware that the school had moved to a new location that placed it beyond the 15-mile statutory limitation from each petitioner’s home. Respondent also stated that there was no so-called "anchor student," a student currently attending PDS who resides within 15 miles of PDS, with whom their children could receive transportation from a centralized pick-up point. However, respondent agreed to continue providing transportation for petitioners’ children to PDS for the remainder of the 1999-2000 school year.

Petitioners allege that respondent has historically provided bus service to students attending PDS without regard to the 15-mile limitation. They allege that respondent was aware that PDS had moved several years ago, locating more than 15 miles from each petitioner's home, yet respondent continued to provide bus service. Petitioners contend that respondent should exercise its discretion and continue providing transportation pursuant to Education Law "3635(1)(b)(ii). They also contend that respondent should have sought public approval before changing its long-standing policy. Petitioners request interim relief permitting their children to continue receiving transportation to PDS pending this decision and a vote by district residents.

Respondent states that it previously provided transportation to PDS when the school was located at its former location, 39 New Hackensack Road, Poughkeepsie and there was an "anchor student" who resided within 15 miles of the school. Upon discovering in the fall of 1999 that PDS had a new location and no current student resided within 15 miles of that location, respondent determined to discontinue providing transportation at the end of the 1999-2000 school year. Respondent argues that since all petitioners concede that they reside more than 15 miles from PDS, it is not obligated to provide transportation for those children. Respondent contends that subdivision (ii) of Education Law "3635(1)(b) is inapplicable. It also argues that it is not obligated to place before the voters a proposition to extend the 15-mile statutory limit. Respondent asserts that its actions were neither arbitrary, capricious nor an abuse of discretion.

I must first address a procedural issue. Although petitioners request interim relief, the Commissioner's regulations provide that a petitioner who wishes to apply for a stay shall do so in the petition, which must contain a notice of stay request (8 NYCRR "276.1). Petitioners failed to provide such notice. In addition, in its April 13 letter, respondent agreed to provide transportation services through the end of the 1999-2000 school year. Furthermore, since the appeal is now decided, the request for interim relief is moot.

Education Law "3635(1)(a) requires respondent to transport all students residing in the district, who attend grades kindergarten through twelve, "up to a distance of fifteen miles, the distances in each case being measured by the nearest available route from home and school" (Appeal of Pacione, 38 Ed Dept Rep 363, Decision No. 14,055; Appeal of Case, 34 id. 438, Decision No. 13,374). A board of education may provide transportation for a greater distance than that required by statute, but only with approval of district voters (Appeal of Hinkley, 37 Ed Dept Rep 431, Decision No. 13,897). In this case, all petitioners concede that they reside more than 15 miles from PDS, and that the district voters have not authorized transportation beyond the 15-mile limit. Accordingly, respondent is not obligated or authorized to provide transportation services to petitioners' children under that statutory provision.

Alternatively, where the district provides transportation to a nonpublic school for pupils living within the specified 15-mile radius from such school ("anchor students"), the district must designate one or more publicschools as a centralized pickup point, and must provide transportation between the pickup point and the nonpublic school for pupils residing too far from the nonpublic school to qualify for regular transportation between home and school (Education Law "3635(1)(b)(i)(emphasis added); Appeal of Scali, 38 Ed Dept Rep 727, Decision No. 14,127; Appeal of Hinkley, supra). In this case, respondent asserts, and petitioners do not dispute, that there is no anchor student currently attending PDS who resides within 15 miles of PDS. Thus, respondent is not obligated to designate a centralized pick-up point and provide transportation from that pick-up point under "3635(1)(b)(i).

A district may, in its discretion, provide transportation to a nonpublic school located more than fifteen miles from the home of any pupil attending that school, provided that transportation has been provided to such nonpublic school in at least one of the immediately preceding three years and such transportation is provided from a centralized pick-up point that is within 15 miles of the nonpublic school (Education Law "3635(1)(b)(ii); Appeal of Hinkley, supra; Appeal of Case, supra). Petitioners claim that, at various times in the past, students attending PDS have resided within the 15-mile limit, and therefore respondent should continue to provide the requested transportation. While respondent acknowledges that at some point in time there was a PDS student who resided within 15 miles of PDS, it asserts that district records only reflect such a student for the 1994-95 school year and none within the last three school years. In addition, respondent asserts that there is no public school that could serve as a centralized pick-up point within 15 miles of PDS. Accordingly, I find that respondent is neither required nor authorized to provide the requested transportation under Education Law "3635(1)(b)(ii).

Although respondent admits that in the past it erroneously provided transportation to students residing beyond the 15-mile limit, the provision of transportation services previously supplied in error does not require respondent to continue to supply such transportation (Appeal of Whitaker, 33 Ed Dept Rep 59, Decision No. 12,974). As the Commissioner stated in Whitaker, "if a board of education is providing transportation for pupils who are not legally entitled to it, the solution is to discontinue such transportation, and not [] to compound the error and illegally transport additional pupils."

I find that respondent has no obligation or authority to transport petitioners' children, and therefore, properly denied petitioners' request for transportation.