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Decision No. 14,967

Appeal of BETH TRADER, on behalf of her son DYLAN, from action of the Board of Education of the Attica Central School District regarding transportation.


Decision No. 14,967


(October 9, 2003)


Harris Beach LLP, attorneys for respondent, Alfred L. Streppa, Esq., of counsel

  MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Attica Central School District ("respondent") to provide transportation for her son, Dylan.  The appeal must be dismissed.

Petitioner claims she and Dylan live .7 miles from the school he attends in respondent"s school district.  Petitioner alleges that there is no sidewalk on her property and that her residence is located on a state highway with a forty-mile per hour speed limit.   Petitioner further alleges that respondent provides bus transportation to other children who live even closer to the school.

By letter dated October 15, 2002, respondent"s superintendent notified petitioner that respondent denied her request for transportation.  However, it appears that transportation was provided at some point.  By letter dated November 15, 2002, the school business administrator notified petitioner that her "arrangement" with another family "does not fall within the spirit of the law" and that, effective November 18, 2002, Dylan would not be afforded district transportation.  This appeal ensued.

 Petitioner requests that respondent"s action be set aside and that respondent be directed to provide transportation for Dylan.  Respondent asserts that petitioner"s claim is untimely and contends that Dylan is not entitled to transportation.

An appeal to the Commissioner of Education must be commenced within thirty days of the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16; Appeal of Recore, 42 Ed Dept Rep ___, Decision No. 14,856; Appeal of Phillips, 40 id. 241, Decision No. 14,471).  By letter dated October 15, 2002, petitioner was notified that respondent denied her request.  Evidently, an alternate arrangement was made and Dylan received transportation at some point.  Petitioner was informed of respondent"s final determination to discontinue transportation by letter dated November 15, 2002.  Petitioner"s counsel first served the petition on November 25, 2002.  However, the petition did not contain the notice required by "275.11 of the Commissioner"s regulations.  My Office of Counsel notified the attorney who then represented petitioner that if he promptly re-served a corrected petition, the appeal would be deemed to have been instituted on November 25, 2002.  The corrected petition was re-served as directed.  Accordingly, I will not dismiss the appeal as untimely.

  Education Law "3635(1)(a) provides in pertinent part:

"transportation shall be provided for all children attending grades kindergarten through eight who live more than two miles from the school which they legally attend and for all children attending grades nine through twelve who live more than three miles from the school which they legally attend and shall be provided for each such child up to a distance of fifteen miles, the distances in each case being measured by the nearest available route from home to school.

This provision also gives a board of education discretion to provide transportation within a lesser distance as long as it is offered equally to all children in like circumstances residing in the district.  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 Mogel, 41 Ed Dept Rep 127, Decision No. 14,636; Appeal of Wenger, 37 id. 5, Decision No. 13,790).

Respondent states that its policy provides for transportation in accordance with the distances set forth in Education Law "3635(1)(a).  There is nothing in the record to indicate that district voters have approved transportation for children who live less than the statutorily prescribed distances from school.  Petitioner acknowledges that she lives .7 miles from Dylan"s school.  Accordingly, Dylan is not entitled to transportation.

Petitioner submits an unsworn letter that purports to be from a student who allegedly was provided transportation in circumstances similar to Dylan"s.  However, the letter is unclear and does not substantiate petitioner"s claim that respondent is not providing bus transportation equally to all children in like circumstances.

     Pursuant to Education Law "3635-b, respondent has established some child safety zones where it provides transportation to children who would be otherwise ineligible for transportation.  However, Dylan does not live in any of respondent"s established child safety zones and petitioner apparently has not requested that such a zone be created around her residence.

Based on the record before me, I cannot conclude that respondent"s determination was arbitrary, capricious, or unreasonable.