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Decision No. 14,479

Appeal of GARY S. GREEN and NANCY B. GREEN, on behalf of ADAM GREEN from action of the Board of Education of the Baldwin Union Free School District regarding transportation.

Decision No. 14,479

(October 25, 2000)

Ingerman Smith, L.L.P., attorneys for respondent, Christopher Venator, Esq., of counsel

MILL, Commissioner.--Petitioners appeal a determination of the Board of Education of the Baldwin Union Free School District ("respondent") denying their son Adam transportation between his child care location and school. The appeal must be dismissed.

During the 1999-2000 school year, respondent transported Adam between Little Lamb Day Care, Inc. and school. On March 13, 2000 petitioners submitted a letter to Michael V. Sheehan, the district’s Director of School Facilities, Operations and Transportation, requesting transportation for Adam between his child care location and school during the 2000-2001 school year. By letter dated May 24, 2000, Dr. Lee Chapman, the district’s Deputy Superintendent for Administration, advised petitioners that the district would no longer provide transportation between school and child care locations.

Mrs. Green made a second request for transportation to and from Adam’s child care location in a letter to Dr. Chapman dated May 26, 2000. She stated that the school district would be providing transportation to the South Shore Y JCC after school program during the 2000-2001 school year. She asserted that under Education Law "3635(1)(e), a district that provides transportation to child care locations must provide it "equally to all children in like circumstances residing in the district." Mrs. Green argued that under this statute, the district was required to transport Adam to his child care location if it transported other students to the South Shore Y JCC. Dr. Chapman subsequently advised petitioners by telephone that the school district was not paying for transportation to the South Shore Y JCC program and therefore had no duty to transport children to other child care locations.

On June 9, 2000, petitioners appealed Dr. Chapman’s decision to respondent. At its July 7, 2000 meeting, respondent voted to deny petitioners’ request for transportation. This appeal ensued. Petitioners’ request for interim relief was denied on August 1, 2000.

Petitioners argue that the school district must transport their son to and from his child care location because it provides transportation for students who attend the South Shore Y JCC after school program. That program is located in two of the district’s school buildings. Petitioners assert that students who attend other schools are transported to the program locations by the same bus company that provides regular transportation to district schools. Petitioners note that brochures produced by the program state that transportation will be provided by the school district and submit the minutes of a 1993 board of education meeting at which transportation for a predecessor program was approved. Petitioners assert that, even if the district is not paying for transportation to the after school program, the bus company is providing it as a result of its contract with the district, and that this triggers the statutory obligation to make transportation equally available to all students in like circumstances. Petitioners also argue that by denying transportation to children who attend child care locations other than the South Shore Y JCC after school program, respondent is discriminating against children with disabilities because the transportation policy limits their access to appropriate after school care.

Respondent argues that its denial of transportation is within its discretion. Respondent denies that it is transporting students to the South Shore Y JCC program. It acknowledges that the school district contracts with Camp Baumann Buses ("Camp"), Inc., as well as with other bus companies, to serve district students, and that Camp transports students from district schools to the after school program. Respondent asserts that it has not contracted or arranged for such transportation and that it is provided pursuant to a private agreement between Camp and the program. Respondent states that transportation to the program is set up, planned and coordinated entirely by program staff. Finally, respondent contends that petitioners’ son is not "in like circumstances" with students who attend an after school program located on school property, so that even if it were providing the disputed transportation, no duty to transport petitioners’ son between school and Little Lamb Day Care before and after school would be created.

The petition must be dismissed. Petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief (Appeal of a Student Suspected of Having a Disability, 40 Ed Dept Rep ___, Decision No. 14,425; Appeal of Dickinson, 39 id. 41, Decision No. 14,168; Appeal of Pulvermacher, 36 id. 333, Decision No. 13,740). They have not met that burden here. The record shows that the school district notified petitioners on May 24, 2000 that it would no longer provide transportation for students from school to a child care location. Education Law "3635(1)(e) affords boards of education the express authority to decide whether to provide such transportation.

Petitioners have failed to establish their claim that, contrary to respondent’s stated policy, the school district is transporting students to an after school program operated on school property by the South Shore Y JCC and that this entitles their son to transportation. Respondent denies that it has contracted for or otherwise arranged to transport students to the South Shore Y JCC program and asserts that program brochures indicating otherwise are erroneous. While there evidently is some confusion over the particulars of the transportation arrangement, petitioners have not established that the transportation is in fact provided by the school district.

In sum, the Education Law expressly grants respondent discretion to determine whether to provide transportation to before and/or after school child care locations. Respondent has elected not to provide such transportation and petitioners have failed to show that respondent is engaging in activity that would trigger an obligation to transport their son. Accordingly, the appeal is dismissed.