Decision No. 14,444

(August 28, 2000)

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Somers Central School District ("respondent") refusing to modify their daughter’s transportation route to the non-public school she attends. The appeal must be sustained in part.

Petitioners’ daughter, Amanda, was a sixth-grade student at the Harvey School, a non-public school, during the 1999-2000 school year. Respondent provided transportation for Amanda from her home to a centralized pick-up point at John F. Kennedy Catholic High School ("JFK") where she switched to another bus that transported her to the Harvey School. Petitioners were unhappy with this arrangement because Amanda had to disembark from one bus and wait approximately 10 to 15 minutes at JFK for her connecting bus. By letters dated September 28, 1999 and October 18, 1999, petitioners, through their attorney, requested that Amanda be transported on a different bus that passed by the Harvey School on its way to another private school (Run #76) or that a new separate bus be instituted for Harvey School students. By letter dated October 26, 1999, respondent’s superintendent notified petitioners that the transportation schedule would be modified to shorten Amanda’s wait at JFK.

On October 28, 1999, petitioners' attorney wrote to respondent to again request Amanda’s assignment to a different bus route. On November 8, 1999, petitioners’ attorney wrote a letter notifying respondent that petitioners had moved. Respondent, by letter dated November 9, 1999, affirmed the superintendent’s refusal to switch Amanda to a different bus route. On January 24, 2000, petitioners’ attorney again wrote to respondent and asked for reconsideration based upon petitioners’ new address. By letter dated January 26, 2000, respondent affirmed its position. Petitioners commenced this appeal on February 25, 2000.

Petitioners contend that Amanda is the only Harvey School student transported by respondent who must change buses enroute to school and that she is entitled to direct transportation to school. They further contend that it is unreasonable to use JFK as the transfer point because Amanda is unsupervised there and because JFK, as a private parochial school, has a different schedule than either the public school or the Harvey School, creating the possibility that Amanda could be left to wait for a bus at JFK when it was not in session. Petitioners request that Amanda be assigned to the bus route that passes Harvey School on its way to another private school and requests that she be transported directly from home to the Harvey School without transferring to another bus.

Respondent alleges that petitioners submitted a transportation request for Amanda in late August 1999, well beyond the April 1 deadline and, despite this, respondent managed to arrange transportation for Amanda. They argue that arrangements have been made for Amanda to wait in the vestibule at JFK and that schedules were rearranged so that her connecting buses would arrive at JFK nearly simultaneously. Respondent contends that it is not feasible to assign Amanda to other routes because it would add extra travel time for the other students on those buses and a separate Harvey School bus would be too costly. Respondent further contends that the appeal is untimely and that its decision was not arbitrary, capricious or unreasonable.

First, I will address the issue of timeliness. An appeal to the Commissioner of Education must be brought within thirty days of the making of the decision or act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Respondent contends that its final determination was conveyed to petitioners in its letter dated November 9, 1999. Petitioners argue that the appeal is timely because their letter dated November 8, 1999 notifying respondent of their address change apparently crossed in the mail with respondent’s letter and, therefore, was not considered in making that determination. Petitioners state that when they realized that respondent had made its decision based on their old address, they wrote again on January 24, 2000 asking respondent to reevaluate Amanda’s transportation in view of their move. Respondent, by letter dated January 26, 2000, again refused to modify Amanda’s bus route and petitioners commenced this appeal within 30 days of that decision. In light of these circumstances, I will not dismiss the appeal as untimely.

Education Law "3635(1) establishes a dual system of entitlement to transportation services to nonpublic schools. Transportation between a pupil's home and the nonpublic school which the pupil attends must be provided if the distance between such home and school is within the statutorily prescribed limits for such transportation. Although the statute requires a board of education to provide transportation for elementary school pupils between home and school for distances of between 2 and 15 miles and for secondary school pupils between home and school for distances of between 3 and 15 miles, the minimum distance may be shortened and/or the maximum distance may be extended by local district policy after approval by district voters (Education Law "3635[1][a]). In this case, my Office of Counsel requested information from respondent regarding the distance limitations of its transportation policy. Their response states that they transport in accordance with the statute, which indicates that only pupils residing within the minimum and maximum distances specified in the statute are eligible to be transported to school by respondent. It is unclear how far petitioners live from the Harvey School. If the distance between petitioners’ home and the Harvey School falls between these distance limits, respondent must transport Amanda directly from her home to the Harvey School without the use of a pick-up point pursuant to Education Law "3635(1)(a).

If petitioners live more than 15 miles from the Harvey School and respondent transports other Harvey School students who live between 2 and 15 miles from that school, Amanda must be transported via a centralized pick-up point pursuant to Education Law "3635(1)(b)(i). However, that provision states that the district must use one or more public schools as a centralized pick-up point (emphasis added). Therefore, respondent’s use of a private parochial school for this purpose is improper.

As for petitioners’ request to have Amanda transported on a particular bus route, that request must be denied. A board of education has broad discretion to determine how transportation is to be provided (Appeal of Reich, 38 Ed Dept Rep 565, Decision No. 14,094; Appeal of Broad, 35 id. 248, Decision No. 13,530). In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of Reich, supra; Appeal of Byrne, et al., 34 Ed Dept Rep 389, Decision No. 13,355). Moreover, a board of education has both the responsibility and the authority to decide difficult questions in balancing the overall efficiency and economy of a transportation system against the convenience of individual students (Appeal ofReich, supra; Appeal of Polifka, 31 Ed Dept Rep 61, Decision No. 12,569). Therefore, I decline to order that Amanda be assigned to a particular bus route.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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