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Decision No. 14,973

Appeal of M.H., on behalf of her granddaughter K.S., from action of the Board of Education of the Farmingdale Union Free School District regarding school bus safety.



(October 22, 2003)


Guercio & Guercio, attorneys for respondent, Randy Glasser, Esq., of counsel


     MILLS, Commissioner.--Petitioner, the paternal grandmother of K.S., seeks an order directing the Board of Education of the Farmingdale Union Free School District ("respondent") to remove another student from her granddaughter"s school bus or to place a monitor on the bus to ensure her granddaughter"s safety.  The appeal must be dismissed.

Petitioner resides in respondent"s district with K.S."s father and K.S.  K.S. attends elementary school in respondent"s district and is transported to and from school by school bus.  On April 1, 2003, there was an incident on the bus between K.S. and another student that resulted in disciplinary action.  Both students received a one-day lunch detention.

Petitioner contends that her granddaughter was assaulted and injured by the other student while on the bus.  Petitioner claims that the same student attacked her granddaughter on two prior occasions and that respondent has failed to address the problem.  Petitioner asserts that district officials have discriminated against K.S. based on her race by failing to address the problem.  Petitioner contends that respondent is responsible for the safety of her granddaughter while she is on the school bus and seeks an order removing the other student from the bus or directing respondent to place a monitor on the bus. 

Respondent contends, among other things, that petitioner does not have standing to bring this appeal.  Respondent maintains that its determination to impose a one-day lunch suspension on the other student rather than   suspending her from transportation was not arbitrary or capricious.

     Respondent objects to petitioner"s reply and argues that it improperly introduces new information to buttress allegations in the petition.  The purpose of a reply is to respond to new material or affirmative defenses set forth in the 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 in the petition (Appeal of S.S., 42 Ed Dept Rep ___, Decision No. 14,852; Appeal of Davies, 42 id. ___, Decision No. 14,776).  I have examined petitioner"s reply and find that it responds to new material or the affirmative defenses set forth in the answer.  Accordingly, I will accept petitioner"s reply.

Respondent requests that I accept a sur-reply that addresses petitioner"s allegation that respondent failed to properly serve its answer on petitioner.  Petitioner has not opposed the request.  The Commissioner, in his discretion, may permit the service and filing of additional pleadings upon such terms and conditions as he may specify (8 NYCRR "275.3).  Accordingly, I have accepted respondent"s sur-reply.     

Petitioner requests that I disallow respondent"s answer because the envelope in which it was contained was addressed to petitioner"s sister at petitioner"s address.  The answer was timely served on June 11, 2003 via certified mail, return receipt requested.  Petitioner received the answer on June 12, 2003, as evidenced by the receipt signed by petitioner.  Petitioner was given the opportunity to reply to each affirmative defense in the answer.  Since petitioner was not prejudiced by the addressing error, I have accepted respondent"s answer (Appeal of Savastano, 32 Ed Dept Rep 326, Decision No. 12,843).

Petitioner lacks standing to bring this appeal.  Pursuant to Education Law "310, individuals may not maintain an appeal unless aggrieved in the sense that they have suffered personal damage or injury to their civil, personal or property rights.  Only persons who are directly affected by the action being appealed have standing (Appeal of Lander, et al., 42 Ed Dept Rep ___, Decision No. 14,822; Appeal of Decastro, 41 id. 415, Decision No. 14,730; Appeal of Finkel, 41 id. 74, Decision No. 14,619).  Petitioner purports to bring this appeal on behalf of K.S. but is not K.S."s parent, legal guardian or custodian.  Therefore, for purposes of this appeal, petitioner has failed to establish that she is aggrieved in a legal sense, and the petition must be dismissed.  Petitioner"s submission of an affidavit from K.S."s father purporting to authorize petitioner to act on behalf of his daughter in this appeal is of no consequence. There is no statutory authority for such practice.

Although this appeal must be dismissed for the reason set forth above, a contention in respondent"s answer warrants comment.  Respondent asserts that it is not responsible for K.S."s safety while she is on the school bus because it has hired an independent contractor to provide transportation to its students.  School districts, however, are required to adopt and enforce a written code of conduct for the maintenance of order on school property (Education Law "2801).  The definition of school property under "2801(1) includes "...a school bus, as defined in section one hundred forty-two of the vehicle and traffic law...." Section "142 encompasses school buses "privately owned and operated for compensation for the transportation of and from school...." Thus, the fact that respondent contracted for transportation services does not negate respondent"s responsibility to enforce the required code of conduct, which must include standards and procedures to assure the security and safety of students (Education Law "2801[2][b] and 8 NYCRR "100.2[l][2]).

     In light of this disposition, I need not address the parties" remaining contentions.