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Decision No. 14,447

Appeal of HAROLD TURNER, on behalf of TRAVIS ROWLAND, from action of the Board of Education of the Rhinebeck Central School District regarding transportation.

Decision No. 14,447

(August 28, 2000)

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

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

MILLS, Commissioner.--Petitioner, a district resident who is the guardian of Travis Rowland, appeals the determination of the Board of Education of the Rhinebeck Central School District ("respondent") denying his request to transport Travis to Our Lady of Lourdes ("Lourdes), a nonpublic school, for the 2000-2001 school year. The appeal must be dismissed.

This appeal is closely related to Appeal of Bank, et al, 40 Ed Dept Rep ___, Decision No. 14,442. Indeed, the petition was submitted with and is virtually identical to the petitions in Bank, except that the school involved in Bank is the Poughkeepsie Day School. By letter dated April 13, 2000, respondent’s business administrator informed parents that the district would not provide transportation to the Poughkeepsie Day School for the 2000-2001 school year. Petitioner attaches this letter to his petition, which concerns transportation to Lourdes. Presumably, petitioner received a similar letter denying his request for transportation to Lourdes, although it is not in the record. However, since the issues are sufficiently clear, and respondent does not object, I will not dismiss the appeal for failure to state a claim (8 NYCRR 275.10).

Lourdes is located at 131 Boardman Road in Poughkeepsie. Petitioner concedes that the distance from his home to Lourdes exceeds 15 miles. However, petitioner alleges that respondent has historically provided bus service to students attending Lourdes without regard to the 15-mile limitation and without regard to whether there was a so-called "anchor student," a student currently attending Lourdes who resided within 15 miles of the school. He alleges that respondent was aware that Lourdes had moved several years ago, yet continued to provide bus service. Petitioner contends that respondent should have sought public approval before changing its long-standing policy. He also contends that respondent should exercise its discretion and continue providing transportation pursuant to Education Law "3635(1)(b)(ii). Petitioner requests interim relief permitting Travis to continue receiving transportation to Lourdes pending this decision and a vote by district residents.

Respondent states that it previously provided transportation to Lourdes when it was located at 29 North Hamilton Street, Poughkeepsie and there was an "anchor student" who resided within 15 miles of the school. Upon discovering in the fall of 1999 that Lourdes had a new location and no current student resided within 15 miles of that location, respondent determined to discontinue providing transportation to Lourdes at the end of the 1999-2000 school year. Respondent argues that since petitioner concedes that he resides more than 15 miles from Lourdes, it is not obligated to provide transportation for Travis. It also argues 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 petitioner requests 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). Petitioner failed to provide such notice. In addition, Travis was not receiving transportation services at the time of the appeal, since he had not yet begun attending Lourdes. 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, petitioner concedes that he resides more than 15 miles from Lourdes and the district voters have not approved transportation beyond the 15-mile limit. Accordingly, respondent is not obligated or authorized to provide transportation services to Travis pursuant to 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, the district must designate one or more public schools as a centralized pick-up point, and must provide transportation between the pick-up 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); Appeal of Scali, 38 Ed Dept Rep 727, Decision No. 14,127; Appeal of Hinkley, supra). In this case, respondent asserts, and petitioner does not dispute, that no student currently attending Lourdes resides within 15 miles of the school. Thus, respondent is not obligated to designate a centralized pick-up point and provide transportation from that pick-up point to Lourdes 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). Petitioner claims that at various times in the past, students attending Lourdes 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 student who resided within 15 miles of Lourdes, it asserts that district records only reflect two such students for the 1994-95 school year. In addition, respondent asserts that there is no district school that could serve as a centralized pick-up point within 15 miles of Lourdes. 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 Travis and, therefore, properly denied petitioner's request for transportation.