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Decision No. 14,872

Appeal of LAURA McCARTHY and MICHELLE BACHER, on behalf of ISABELLA McCARTHY and JORDAN BACHER, from action of the Board of Education of the Greenport Union Free School District regarding transportation.



(May 30, 2003)


Guercio & Guercio, attorneys for respondent, Vanessa Sheehan, Esq., of counsel


MILLS, Commissioner.--Petitioners appeal the denial by the Board of Education of the Greenport Union Free School District ("respondent") of their request for direct transportation for their children from the nonpublic school they attend to their homes.  The appeal must be dismissed.

Petitioners reside with their children in respondent"s school district.  Petitioners" children are five years of age and attend the Hayground School, a nonpublic school, located in Bridgehampton ("Hayground").  Petitioners applied for transportation in a timely manner and respondent contracted with Sunrise Buses, Inc. for a 15- passenger van to take their children directly from their homes in Greenport to Hayground each morning.  The nearest available route to Hayground requires transportation from Greenport to Shelter Island via the North Ferry, passing the Shelter Island School on Route 114.  Petitioners" children must then be transported across Shelter Island to the South Ferry which connects Shelter Island with the South Fork of Long Island.  From there, the van makes a stop at the Ross School in East Hampton to drop off two students and then travels to Hayground in Bridgehampton to drop off petitioners" children.

The transportation arrangements in the afternoon are different.  Respondent contracts with the Shelter Island Union Free School District to pick up petitioners" children at Hayground in a 66-passenger school bus.  The bus also picks up Shelter Island students at the Hampton Day School and the Stella Maria School on the South Fork of Long Island.  The bus then transports the students from the South Fork of Long Island to Shelter Island via the South Ferry.  Petitioners" children are the only Greenport residents on the Shelter Island bus.  They transfer from Shelter Island"s 66-passenger school bus to Greenport"s 15-passenger van in the parking lot of the Shelter Island School.  Greenport"s 15-passenger van arrives at approximately 3:15 p.m. to wait for petitioners" children, who arrive at the Shelter Island School parking lot between 3:25 p.m. and 3:47 p.m., depending upon the arrival of the South Ferry on Shelter Island.  Petitioners" children are then transported from the Shelter Island School on Route 114 to their homes in Greenport.

Both the morning and afternoon trips take approximately one hour and twenty-five minutes and require two ferry rides each way.  On September 11, 2002, petitioners followed the 66-passenger bus on its afternoon route and observed their children exit the Shelter Island bus and walk unescorted to the Greenport 15-passenger van.  By letter dated September 18, 2002 to respondent and its superintendent, petitioners expressed concern for the safety of their children during the afternoon bus-to-van transfer and requested a direct bus home two days per week, Mondays and Wednesdays.  Petitioners enclosed with their September 18 letter a videotape of their September 11, 2002 observation of their children making the bus-to-van transfer.

The superintendent informed petitioners by letter dated September 19, 2002 that their request for direct bus transportation on Mondays and Wednesdays was denied by respondent.  This appeal ensued.

Petitioners seek direct transportation of their children from Hayground to their homes in Greenport on a single bus without transfer, on Mondays and Wednesdays, for safety reasons.  Respondent contends that its decision not to provide such transportation was made after considering safety, convenience, routing efficiency and cost.  Respondent contends that its action is reasonable because the afternoon bus transfer is made along the same route as the morning, is beneficial to both school districts by utilizing one bus, and does not compromise the children"s safety.  Respondent asserts that the transfer point at Shelter Island, located in the school parking lot, is not unsafe and is similar to many transfer and pick-up points in suburban areas.  Respondent further contends that its arrangement with the Shelter Island Union Free School District is reasonable and the most cost-effective way to transfer petitioners" children, saving respondent $2,509.70.

Under Education Law "3635(1), boards of education are required to provide transportation to nonpublic school students under various circumstances. 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 (Education Law "3635[1]).  Respondent provides full transportation to all resident students up to the maximum statutory limit of 15 miles and has a cooperative arrangement with the Shelter Island Union Free School District for the transportation of petitioners" children in the afternoon pursuant to Education Law "1709(27), that authorizes a board of education to contract for transportation.

With regard to petitioners" request to have their children transported on a particular bus without transfer, a board of education has broad discretion to determine how such transportation will be provided (Appeal of Del Prete, 40 Ed Dept Rep 148, Decision No. 14,444; Appeal of Reich, 38 id. 565, Decision No. 14,094; Appeal of Broad, 35 id. 248, Decision No. 13,530).  In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of Del Prete, supra; Appeal of Reich, supra; Appeal of Byrne, et al., 34 Ed Dept Rep 389, Decision No. 13,355).  Moreover, a board of education has both the responsibility and authority to implement a transportation policy that balances the safety and convenience of individual pupils with overall economy and efficiency (Appeal of Polifka, 31 Ed Dept Rep 61, Decision No. 12,569; Appeal of Cunningham, 28 id. 10, Decision No. 12,012).  The Commissioner of Education will uphold a district"s transportation determination, unless it is unreasonable or an abuse of discretion (Appeal of Byrne, et al., supra; Appeal of Polifka, supra).

In addition, neither the Education Law nor the Commissioner"s regulations specify maximum time limits for the transportation of students.  Indeed, prior Commissioner"s decisions have upheld one-way student commutes of one and one-half hours as not excessive (Appeal of Reich, 38 Ed Dept Rep 565, Decision No. 14,094; Appeal of Lavin, 32 id. 249, Decision No. 12,821; Appeal of Polifka, supra).  In this case, the record indicates that the bus arrangement preferred by petitioners would take the same amount of time and use the same route as that used by respondent in contracting with the Shelter Island Union Free School District.

Respondent estimates that it saves approximately $2,509.70 each year by transporting petitioners" children to their nonpublic school on the shared school bus used by the Shelter Island Union Free School District.  The fact that respondent uses a variety of means to transport students to and from school (i.e., a 66-passenger bus, a 15-passenger van) does not necessarily indicate that students are not receiving equal treatment within the meaning of Education Law "3635 (see Appeal of Lavin, supra).

In this case, petitioners have failed to prove that respondent has acted unreasonably or abused its discretion in implementing its transportation policy.  Petitioners present the September 11, 2002 videotape they made as evidence that the children"s bus-to-van transfer is dangerous.  While I am sympathetic to petitioners" concerns about their children"s safety, they present insufficient evidence on the record before me to overturn respondent"s decision.

Respondent counters with evidence that safety measures have been taken in express written terms with Sunrise, Inc. for the 15-passenger van as well as with the Shelter Island Union Free School District for the 66-passenger bus.  The drivers of each vehicle received explicit instructions on October 28, 2002 to ensure the safety of petitioners" children.  Specifically, the van driver has been instructed to escort petitioners" children from the bus to the van.  Thus, respondent"s transportation policy balances overall efficiency and economy against the individual interests of the students without compromising their safety.

Based on the foregoing, I conclude that respondent"s decision in this matter is not arbitrary, capricious or unreasonable.