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Decision No. 14,448

Appeal of JOANNE GOLDSTEIN, on behalf of LOREN C. GOLDSTEIN, from action of the Board of Education of the Byram Hills Central School District regarding transportation.

Decision No. 14,448

(August 28, 2000)

Ecker, Loehr, Ecker & Ecker, L.L.P., attorneys for petitioner, Gerald E. Loehr, Esq., of counsel

Shamberg, Marwell, Hocherman, Davis & Hollis, P.C., attorneys for respondent, Adam L. Wekstein, and John S. Marwell, Esqs., of counsel

Mills, Commissioner.--Petitioner appeals the decision of Byram Hills Central School District ("respondent") denying transportation for her daughter to a nonpublic school. The appeal must be dismissed.

Petitioner, the mother of Loren Goldstein, purchased a house in respondent’s district with plans to move into it in the spring of 2000. By letter dated October 26, 1999, petitioner’s attorney requested transportation for Loren to Ursuline School ("Ursuline" or "Ursuline School"), a nonpublic high school located in New Rochelle, for the 2000-2001 school year. By letter dated December 22, 1999, the district’s Supervisor of Pupil Transportation denied petitioner’s request on the grounds that petitioner’s residence would be more than 15 miles from the Ursuline School, that no other students in the district were currently being transported to that school, and that no transportation had been provided to Ursuline School in at least one of the immediately preceding three school years. This appeal ensued.

Petitioner contends that respondent provides transportation to Iona Prep High School ("Iona"), a boy’s nonpublic school, located 8/10’s of a mile from Ursuline School in New Rochelle. Petitioner alleges that Ursuline, which only admits girls, is the "sister" school to Iona. Petitioner maintains that since respondent transports six boys from the district to Iona, it also should transport her daughter to Ursuline. Petitioner argues that the failure of the district to transport Loren constitutes gender discrimination. Finally, petitioner asserts that her family’s demanding work schedule subjects them to significant hardship if Loren is denied transportation to Ursuline School.

Respondent contends that Loren is not entitled to transportation to Ursuline School, because she lives 16.7 miles from the school, well beyond the 15-mile limit established in Education Law "3635(1), and the district has not elected to extend transportation beyond the radius set forth in the statute. Respondent maintains that it does transport six students to Iona, however, one of those six students resides 14.7 miles from Iona. Respondent claims that because one Iona student lives within 15 miles of that school, the district is required by Education Law "3635(1)(b)(i) to provide transportation from a central pickup point for the other five students attending Iona who live more than 15 miles from the school. Additionally, respondent alleges that it has not provided transportation to Ursuline School for any student in the district for the past 27 years. Respondent claims Loren is not the victim of gender discrimination because she is not similarly situated to the students attending Iona. Finally, respondent claims that parental hardship transporting a child to school is not a basis for providing transportation.

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]).

Additionally, transportation may be furnished for certain other pupils attending nonpublic school in accordance with Education Law "3635(1)(b)(i). A school district providing transportation to a nonpublic school for pupils living within the specified distances from such school must designate one or more public schools as centralized pickup points, and must provide transportation between such pickup points and such nonpublic school for pupils residing too far from the nonpublic school to qualify for regular transportation between home and school. The statute does not require transportation from centralized pickup points to any nonpublic school to which regular home to school transportation is not already being provided (Matter of Defeis, 34 Ed Dept Rep 408, Decision No. 13,362; Matter of Cantone, 22 id. 200, Decision No. 10,931; Matter of Safar, 22 id. 93, Decision No. 10,892).

Education Law "3635(1)(b)(ii) further states that a board of education "may, at its discretion," provide transportation from a centralized pickup point for pupils residing within the district to a nonpublic school located more than 15 miles from the home of any such pupil, provided that transportation has been provided to the nonpublic school in at least one of the immediately preceding three school years. When a school district exercises its discretion to provide transportation pursuant to Education Law "3635(1)(b)(ii), the distance from the pickup point to the nonpublic school must not be more than 15 miles.

In this case, there is no evidence that transportation is required pursuant to Education Law "3635(1)(b)(i) or (ii). Neither party disputes that petitioner resides 16.7 miles from Ursuline, and there is nothing in the record indicating other students in the district attend Ursuline and reside within the prescribed 15-mile radius. Thus, petitioner's daughter would not be eligible for transportation under "3635(1)(b)(i). Moreover, petitioner has not established eligibility for transportation for her child under "3635(1)(b)(ii), as there is no evidence that respondent has transported any students to Ursuline within the immediately preceding three school years.

Though petitioner attempts to argue that Ursuline School is similarly situated to Iona, there is insufficient evidence in the record for me to reach that conclusion. The two schools are almost a mile apart. The only indication that they are affiliated is petitioner’s statement that they have comparable curriculum, engage in reciprocal social activities, combine drama clubs, and that they are both Catholic schools. Based on the record before me I do not find these schools are so similar that petitioner’s daughter and the students attending Iona are "in like circumstances." The Commissioner of Education has previously held that two schools which shared a common parking lot, a German language instructor, the same religious chapel, and meal preparation, were not sufficiently integrated to qualify each other for transportation (Appeal of Hinkley, 37 Ed Dept Rep 431, Decision No. 13,897). This record contains even less evidence of affiliation between Ursuline and Iona.

Petitioner has also attempted to argue that her daughter is the victim of gender discrimination. However, there is no evidence of any relationship between Loren’s gender and the respondent’s determination. Respondent utilized objective criteria pursuant to Education Law "3635 in reaching its decision. The statute clearly precludes a student in Loren’s circumstances, regardless of gender, from receiving transportation. Moreover, the male students attending Iona are provided transportation not due to their gender, but solely due to the fact that one of them resides less than 15 miles from the school.

Finally, hardship caused by family circumstances which preclude transportation of a child to school, is not a basis for requiring a district to provide such transportation when the student is otherwise ineligible for transportation under Education Law "3635 (Appeal of McNair, 33 Ed Dept Rep 418, Decision No. 13,098).

Accordingly, respondent is not required nor is it authorized to provide the requested transportation services petitioner seeks.