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Decision No. 14,526

Appeal of ROCCO LUCENTE, II, on behalf of LAUREN LUCENTE, from action of the Board of Education of the Clarence Central School District regarding transportation.

Decision No. 14,526

(December 22, 2000)

Cohen & Lombardo, P.C., attorneys for petitioner, Rocco Lucente, II, Esq., of counsel

David A. Hoover, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Clarence Central School District ("respondent") denying his daughter transportation to a nonpublic school. The appeal must be dismissed.

Petitioner and his daughter, Lauren, reside in respondent’s school district. On or about March 22, 2000, petitioner submitted a request for transportation for Lauren to the Nardin Academy Montessori Campus ("Nardin Montessori"), a nonpublic school, for the 2000-01 school year. Sometime prior to the start of school, Roger Crassi, the district’s head bus driver, measured the distance between petitioner’s home and the nonpublic school using the nearest available route and found it to be 18 miles. In a letter dated September 19, 2000, respondent denied petitioner’s transportation request. This appeal ensued.

Petitioner does not contend that he lives within 15 miles of Nardin Montessori. He asserts, however, that respondent’s decision denying his daughter transportation is arbitrary and capricious because respondent currently provides transportation to a number of district students to the Nardin Academy Elementary/High School ("Nardin Academy") and Canisius High school which are located within 1,000 feet of Nardin Montessori. Petitioner further alleges that he initially received written confirmation from the district that it would transport Lauren to Nardin Montessori from a central pickup point, but when Lauren’s mother contacted the district shortly before the start of school to inquire about the transportation arrangements she was advised that "an error had been made".

Respondent explains that although it transports district students to Nardin Academy and Canisius High School and has a central pickup point for that purpose, it does not presently and has not within the last three years transported any district student to Nardin Montessori. Respondent contends that it, therefore, has no obligation to transport Lauren because Nardin Montessori is located more than 15 miles from petitioner’s home. Respondent maintains that the Nardin Montessori Campus is separate from Nardin Academy and that the mere proximity of the two campuses does not obligate respondent to transport Lauren.

Respondent also asserts that it did not retain copies of the 5,000 letters it sent to district residents eligible for transportation and cannot verify whether petitioner was initially told that Lauren would receive transportation. Respondent speculates, however, that it may have initially advised petitioner that she was eligible for transportation based on the mistaken belief that Lauren would be attending Nardin Academy.

As a preliminary matter, I will address respondent’s contention that petitioner’s reply papers should be disregarded because they improperly buttress allegations in the petition. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been included in the petition (Appeal of McCart, 39 Ed Dept Rep 534, Decision No. 14,302; Appeal of Breud, 38 id. 748, Decision No. 14,133). Therefore, while I have reviewed petitioner’s reply, I have not considered those portions that contain new allegations that are not responsive to new material or affirmative defenses set forth in the answer.

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 that 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 it appears that the voters have not elected to extend the maximum distance beyond 15 miles.

Additionally, transportation may be furnished for certain other pupils attending a 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 (Appeal of Scali, 38 Ed Dept Rep 727, Decision No. 14,127; Appeal of Raymond, 37 id. 670, Decision No. 13,953).

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). Respondent contends, and petitioner does not dispute, that petitioner resides more than 15 miles from Nardin Montessori and no other students from the district attend this nonpublic school. Thus, petitioner's daughter is not eligible for transportation under "3635(1)(b)(i). Moreover, petitioner has not established eligibility for transportation for his daughter under "3635(1)(b)(ii). Significantly, there is no evidence that respondent has transported any students to Nardin Montessori within the immediately preceding three school years. Accordingly, respondent is neither required nor authorized to provide the requested transportation services petitioner seeks. The fact that respondent transports district students to a school affiliated with and in close proximity to Nardin Montessori does not entitle Lauren to transportation for which she is otherwise ineligible (Appeal of Hinckley, 37 Ed Dept Rep 431, Decision No. 13,897).