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Decision No. 15,012

Appeal of a PRESCHOOL CHILD WITH A DISABILITY, by her mother, from action of the Board of Education and Superintendent of Schools of the Lawrence Union Free School District.



(January 16, 2004)


Minerva & D'Agostino, P.C., attorneys for respondents, Doreen Levinson, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the denial of transportation services to her daughter by the Board of Education of the Lawrence Union Free School District ("the board") and its Superintendent of Schools ("Superintendent").  The appeal must be dismissed.

According to respondents, the District ". . .  gratuitously provided transportation of prekindergarten students to registered New York State Education Department schools within the mileage and age parameters established by the District."  Accordingly, in or about March 2002, the district"s transportation office accepted applications for transportation of pre-kindergarten children residing within the district that would be four years of age on or before September 1, 2002.

In March 2002, petitioner's husband applied for transportation of his daughter for the 2002-2003 school year.  District staff advised him that the child was ineligible for transportation under the district's policy, since her fourth birthday was after September 1, 2002.

Respondents state that the September 1, 2002 cut-off date was based on the district's anticipated budget, which provided for bus matrons only for transportation to and from the district's experimental pre-kindergarten program, and not for other pre-kindergarten programs.  In May 2002, after the approval of a district budget providing for bus matrons for transportation to and from schools registered by the State Education Department ("Department"), the board changed the cut-off date to accept transportation applications for children who would be four years of age on or before December 2, 2002 and who would be attending schools registered by the Department.

     On or about September 24, 2002, the district's transportation office received an application from petitioner and her husband for transportation of her daughter to the Gan Chamesh Pre-School.  Upon determining that the pre-school was in fact a licensed day care provider and not a school registered with the Department, the superintendent denied the application by letters dated November 18, 2002 and January 7, 2003, on the grounds that the district does not provide transportation to and from a day care provider when such provider is a child's primary educational placement or program.

     By letter dated January 24, 2003, petitioner attempted to appeal to the board.  By letter from its president dated March 10, 2003, the board informed petitioner that the district does not provide transportation to day care centers as the primary educational setting for any child, and that the information supplied by petitioner indicates that her daughter attends a licensed day care facility.

     Petitioner commenced this appeal by service of a copy of the petition on the district clerk on April 9, 2003.

     Petitioner alleges that respondents" denial of transportation is arbitrary, capricious and irrational.  She further maintains that her daughter"s due process rights were violated when the district failed to notify her of the change in the cut-off date for transportation, failed to notify her of the reasons for denial of transportation, and failed to advise her of her right to appeal.  Petitioner also alleges that the district  provides transportation to other students attending day care facilities.  Petitioner requests that I reverse respondents" determination and direct that respondents cease their allegedly improper practices and provide transportation for her daughter.  Petitioner also requests reimbursement from the board for her expenses in providing transportation for her daughter.

     Respondents deny petitioner's allegations, and contend that the appeal must be dismissed as untimely.  Respondents also contend that the appeal must be dismissed as to the superintendent for improper service. Respondents maintain that petitioner fails to state a claim upon which relief can be granted, fails to establish the facts upon which she seeks relief, and fails to demonstrate a clear legal right to the relief requested.

The appeal must be dismissed with respect to the superintendent.  An appeal to the Commissioner is commenced by personal service of the petition upon each named respondent (8 NYCRR "275.8[a]).  The record shows that petitioner delivered a copy of the petition to the district clerk (thereby effecting service upon the board), but failed to personally serve the superintendent.  Therefore, the appeal must be dismissed to the extent it seeks relief against the superintendent (Appeal of Bluemke, et al., 39 Ed Dept Rep 447, Decision No. 14,281). 

An appeal to the Commissioner must be commenced within 30 days from 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).  Petitioner has failed to rebut respondents" assertion that the superintendent is authorized to make final transportation determinations and that the superintendent's correspondence dated November 18, 2002 and January 7, 2003 constituted a final determination.  Although petitioner characterizes her letter of January 24, 2003 to the board president as an "appeal," respondents contend that the letter was a "reconsideration request."  A reconsideration request does not extend the time within which an appeal must be commenced (Appeal of Williams, 42 Ed Dept Rep __, Decision No. 14,846; Appeal of Davila , 41 id. 419, Decision No. 14,732; Appeal of Bratge, 40 id. 180, Decision No. 14,454).  The March 10, 2003 letter of the board president in response to petitioner's letter does not indicate that it is a decision with respect to an appeal from the superintendent's determination and is not inconsistent with a reconsideration request.  The letter merely reiterates the basis for denial of transportation as indicated in the Superintendent's November 18, 2002 and January 7, 2003 correspondence, i.e., that the district does not transport children to day care centers as the primary educational setting.  Accordingly, this appeal, commenced on April 9, 2003, must be dismissed as untimely.

 The appeal must also be dismissed as moot to the extent it seeks transportation for the 2002-2003 school year.  The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Schrader, 42 Ed Dept Rep 47, Decision No. 14,771; Appeal of E.F., 42 id. 23, Decision No. 14,762).  Since the 2002-2003 school year has ended, petitioner's request for transportation is moot.

Even if this appeal was not dismissed on procedural grounds, it would be dismissed on the merits.  Respondents indicate that petitioner's daughter has been classified by the district"s committee on preschool special education (CPSE) as a child with a disability, and the CPSE has recommended that she receive related services, but has not recommended any transportation services.  Although Education Law "4410(8) requires a municipality (usually the county in which the child resides) to provide transportation to a preschool child with a disability under certain circumstances, petitioner has failed to provide sufficient evidence to enable me to make a determination regarding the statute's applicability, if any, in this appeal (Appeal of Green, 40 Ed Dept Rep 278, Decision No. 14,479).  Indeed, petitioner has failed to make any allegations regarding this issue.    

In the absence of any other statute or regulation providing for transportation, a board of education's authority to provide transportation is restricted to the limitations set forth in Education Law "3635 (Appeal of Neubauer, 32 Ed Dept Rep 320, Decision No. 12,841).  Section 3635(1)(e) authorizes, but does not require, a board of education, at its discretion, to provide transportation under specified circumstances to any child attending grades kindergarten through eight between the school such child legally attends and child care locations, including day care centers.  However, the statute does not provide a board of education with authority, even discretionary, to provide transportation to a child of less than school age, except in the limited circumstances where such child is accompanying a parent who is under 21 years of age to and from such parent's school (see Education Law "3635[1][f]).  Consistent with the statute, the board"s policy limits transportation to and from child care locations to children in grades kindergarten through eight, and prohibits transportation between the student's home and the child care location. 

At the time of her application for transportation in September 2002, petitioner's daughter was three years old, and therefore of less than school age, and sought transportation to a day care center.  Accordingly, pursuant to Education Law "3635, the board had no authority to provide petitioner's daughter with transportation.  Although petitioner alleges in a general, conclusory manner that the district provides transportation to other students attending day care centers, petitioner does not allege the specific circumstances of such transportation, fails to offer any evidence to support this allegation, and therefore has failed to carry her burden of proof (Appeal of Green, supra). 

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