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Decision No. 14,636

Appeal of AMY MOGEL, on behalf of MAX MOGEL, from action of the Board of Education of the Merrick Union Free School District regarding transportation.

Decision No. 14,636

(August 27, 2001)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, David M. Cohen, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Merrick Union Free School District ("respondent") to transport her son, Max, from her residence to the Chatterton Elementary School. The appeal must be dismissed.

Pursuant to its policy, respondent provides transportation to pupils who live one-half mile or more from the school they attend, as measured from "the nearest school exit to the beginning of a resident's property line by using the most direct way without involving impassable and hazardous obstacles."

Petitioner and her son are residents of respondent's school district. Petitioner alleges that she suffers from a neurological disorder that causes her difficulty walking and maintaining balance, and that she also suffers from asthma, resulting in her being intermittently short of breath and unable to walk for any significant distances. Petitioner alleges that because of her difficulty in maintaining balance, she is unable to traverse ice or snow without risking personal injury.

Petitioner alleges that after being unable to get her son to kindergarten registration by herself due to icy conditions, she requested transportation for the child. Respondent denied petitioner's request on the grounds that petitioner and her son reside less than one-half mile from the school, as determined pursuant to its policy. Petitioner then commenced this appeal and contends that respondent's method of measuring the one-half mile distance is unreasonable, arbitrary and capricious. Petitioner alleges that the measurement was made from a door on the southeast end of the Chatterton Elementary School that is locked or never used for entrance into the school. Petitioner further alleges that the doorway that her son would in fact use to enter the school is more than one-half mile from her residence. Petitioner also alleges that the policy violates her rights and the rights of other disabled parents of students under the Americans with Disabilities Act. Petitioner requests a determination that her son is entitled to transportation to and from the Chatterton Elementary School.

Respondent denies that its policy is unreasonable, arbitrary and capricious or that it violates the Americans with Disabilities Act. In addition, respondent contends that the appeal must be dismissed as untimely, and that I lack jurisdiction with respect to petitioner's claims under the Americans with Disabilities Act.

Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal be instituted within 30 days from the making of the decision or the performance of the act complained of. Petitioner commenced this appeal by service of a copy of her petition on respondent on May 7, 2001. Respondent alleges that petitioner was informed as early as January 2001 that her son is not eligible for transportation, and specifically alleges that the superintendent discussed this matter with the board of education at the board's January 23, 2001 meeting and that the superintendent informed petitioner "shortly thereafter" that the board determined that it would not make an exception to its policy for petitioner. However, respondent submits no letter, board minutes or memorandum to substantiate its allegations. While respondent has submitted the affidavit of its superintendent, in which he states that he informed petitioner by telephone "within a matter of days after the board's January 23, 2001 meeting at which her request was discussed, that transportation would not be provided to her," petitioner denies that the superintendent so informed her and alleges that the only relevant communication she has received is the superintendent's April 5, 2001 letter, which she received on April 9, 2001. Moreover, I note that the superintendent's April 5, 2001 letter itself is ambiguous on the issue of whether respondent had made a final determination with respect to petitioner's transportation request. In the letter, no reference is made to the January 23, 2001 board meeting and the superintendent states that he would call petitioner after spring recess "to again review this matter." The burden is on respondent to establish its affirmative defense. On the record before me, I find respondent has failed to establish that the appeal is untimely.

With respect to petitioner's claims under the Americans with Disabilities Act ("ADA", 42 U.S.C. ""12101-12134), an appeal to the Commissioner is not the proper forum in which to raise alleged violations of the ADA (Appeal of Cochran, et al., 35 Ed Dept Rep 555, Decision No. 13,631; Appeal of Christner, 33 id. 344, Decision No. 13,070). Jurisdiction of enforcement of claims raised under the ADA is with the Federal Courts, the U.S. Department of Justice and the U.S. Department of Education (28 C.F.R. ""35.170-35.190). Accordingly, I will not consider petitioner's claims relating to the ADA.

Petitioner contends that respondent can provide transportation to her son under Education Law "3635(1)(a), which provides, in relevant part:

Transportation for a lesser distance than two miles in the case of children attending grades kindergarten through eight . . . may be provided by the district, and, if provided, shall be offered equally to all children in like circumstances residing in the district . . .

Petitioner contends that if transportation was provided for her son pursuant to this statute, such transportation must only be extended to other children in like circumstances, i.e. children residing within a one-half mile radius with a permanently physically disabled custodial parent. However, transportation for a lesser or greater distance than that set forth in Education Law "3635(1)(a) may only be provided upon approval by the voters of the district (Appeal of Wenger, 37 Ed Dept Rep 5, Decision No. 13,790). There is nothing in the record to indicate that district voters have approved transportation for less than one-half mile distance from the school, so as to authorize respondent to provide transportation to petitioner's son. Absent such approval, respondent may only provide transportation to those pupils who reside one-half mile or more from the school, as measured according to respondent's policy.

Establishing transportation routes and measuring distances are matters within the discretion of the board of education and the Commissioner will not set aside such actions unless it appears that the board has been arbitrary, capricious or unreasonable (Appeal of Rosen, 37 Ed Dept Rep 107, Decision No. 13,816). Petitioner contends that it is unreasonable for respondent to measure the distance from an entrance that her son would not be able to use. However, respondent disputes petitioner's allegation that the entrance is not in use, and asserts that the entrance is in fact open during the arrival and departure time of students. On the record before me, I am unable to determine whether this entrance is in fact open, closed or otherwise restricted in use.

In any event, Education Law "3635 provides that transportation be provided for those residing at certain distances from the school which they legally attend. A school district has broad discretion in selecting measurement points on school property for purposes of determining eligibility for transportation (Appeal of Gundrum v. Ambach, 55 NY2d 872, rev'g 83 AD2d 911; Appeal of Canossa, et al., 37 Ed Dept Rep 456, Decision No. 13,904; Appeal of Stegner, 35 id. 502, Decision No. 13,613). It may measure transportation distances from any part of the school, so long as it does so fairly and consistently (Appeal of Canossa, et al., supra; Matter of Law, et al., 12 Ed Dept Rep 224, Decision No. 8620, aff'd Sup.Ct. Albany Co., n.o.r.). Commissioner's decisions have upheld measurements using a variety of reference points, such as: a corner of the school property (Appeal of Canossa, et al., supra); the side, rather than front, entrance of the school (Appeal of Mermelstein, et al, 30 Ed Dept Rep 119, Decision No. 12,406); the point at which the child first comes in contact with the grounds of the school he or she attends (Appeal of Pavony, et al., 27 Ed Dept Rep 295, Decision No. 11,951); a point at the entrance gate to the school grounds (Matter of Feldblum, 4 Ed Dept Rep 156, Decision No. 7499) and the mid-point of the school (Matter of Silbert, et al. and Fitzpatrick, 1 Ed Dept Rep 283, Decision No. 6607).

I note that respondent measures the distance from the beginning of a resident's property line to "the nearest school exit." There is nothing improper about respondent using multiple entrances as a means to measure distance, provided a uniform policy is adopted (Matter of Silbert, et al. and Fitzpatrick, supra). In Silbert, et al. and Fitzpatrick, the board of education used three entrances and it was noted that:

The Board would be free . . . to pick the entrance most favorable to the child, viz., the longest distance from his home in order that he be entitled to transportation or on the other hand the Board could decide upon the entrance for all children which would be the nearest to the child's home and under such circumstances less likely that transportation be needed. As long as the Board has adopted a uniform policy which it has the right to do, the Commissioner of Education will not interfere.

Petitioner does not allege, and there is nothing in the record to establish, that respondent's policy is being unfairly or inconsistently applied. Although petitioner alleges that the policy is unclear and defective because it does not state from which side of a resident's property line the measurement to school will begin, it appears from the record that respondent interprets the policy to require measurement from the property line located closest to the school. I do not find such interpretation unreasonable, and petitioner does not allege, nor is there anything in the record to establish that respondent has applied a different interpretation in measuring the distance between petitioner's property line and the elementary school. Furthermore, although petitioner makes a general allegation that respondent's measurement is inaccurate, petitioner has failed to submit any proof to establish her allegation. The record indicates that in April 2001, respondent's director of facilities, using a "Roadrunner Model RR-218" device employing a wheel and trip arm calibrated mechanism, measured the distance from petitioner's residence to the closest entrance to the Chatterton School in April 2001 and found it to be less than one-half mile.

Petitioner also contends that respondent cannot rationally contend that a child less than five years old can walk to school unaccompanied and that therefore the establishment of a one-half mile limit is an "arbitrary and unsupported conjecture of the distance [respondent] can expect a parent or guardian to walk a child to school . . ." However, respondent's establishment of the one-half mile limit is within the authority granted to it by Education Law "3635(1)(a), which requires school districts to provide transportation only for elementary students who live two miles or more from the school they attend. Both the courts and the Commissioner have held that the Legislature, in enacting Education Law "3635, intended that boards of education would be required to provide transportation solely on the basis of distance, rather than on the basis of subjective factors (Pratt v. Robinson, 39 NY2d 554; Matter of Studley v. Allen, 24 AD2d 678; Appeal of Fausel, 30 Ed Dept Rep 395, Decision No. 12,509). For those students who are not eligible for school district-provided transportation, it is the responsibility of their parents to provide for their safe arrival at school (Pratt v. Robinson, supra; Matter of Studley v. Allen, supra).

Petitioner alleges that there is room for her son on the school bus passing by her home. However, respondent lacks authority to transport children who do not meet the distance requirement established pursuant to Education Law "3635(1)(a), notwithstanding the fact that there may be room on the bus (Matter of Studley v. Allen, supra; Appeal of Canossa, et al., supra).

Finally, while I understand and appreciate the difficulties petitioner's physical condition may cause her, exceptions to a board's transportation policy may not be made based upon the personal challenges facing individual parents. A board of education must exercise its discretion in matters relating to transportation in a manner which impartially administers the standards of eligibility established by law and by the policy approved by the voters of the district. The use of objective standards and the application of a consistent policy assure that all pupils will be treated fairly and eliminate the possibility of discrimination or favoritism (Matter of Schulman, 22 Ed Dept Rep 405, Decision No. 11,013).