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Decision No. 15,028

Appeal of JON and ANNE FLEMMING, on behalf of MICHAEL, LAURA and PETER FLEMMING, from action of the Board of Education of the Chatham Central School District regarding transportation.



(February 12, 2004)


Keith G. Flint, Esq., attorney for respondent


MILLS, Commissioner.--Petitioners appeal the refusal of the Board of Education of the Chatham Central School District ("respondent") to provide transportation for their children.  The appeal must be dismissed.

Pursuant to its transportation policy, respondent does not transport students who reside less than one mile from its schools.  Petitioners applied for transportation for their children for the 2002-2003 school year.  Respondent"s transportation supervisor measured the distance between petitioners" paved driveway and the curbside entranceway of the Chatham High School, the district"s designated measuring point, and denied petitioners" request because the distance measured less than one mile. 

Petitioners again applied for transportation for the 2003-2004 school year.  The transportation supervisor re-measured the distance, using the same measuring points, and denied petitioners" request.  Petitioners appealed that determination to respondent.  By letter dated September 15, 2003, respondent denied petitioners" request for transportation.  This appeal ensued.  Petitioners" request for interim relief was denied on September 30, 2003.

Petitioners contend that their residence is one mile from respondent"s high school when the distance is measured from the high school to a gravel driveway on their property.  Petitioners assert that the distance should be measured from the gravel driveway instead of the paved one, because its location is safer for a pick-up point.  Petitioners also assert that it is unsafe for their children to walk to school because of traffic and lack of sidewalks.  Petitioners argue that they used a more accurate device to measure the distance.  Petitioners maintain their children are entitled to transportation.  

Respondent contends that the appeal is untimely and that its determination was reasonable because petitioners live .9 miles from the high school.   Respondent states that petitioners" paved driveway constitutes the main entranceway to their property and that it consistently applied the same measuring standards and methodology to all transportation requests.  Respondent asserts that it has not provided transportation to petitioners" residence since its transportation policy changed in 1991.

Initially, I must address the issue of timeliness.  Respondent asserts that the appeal is untimely because petitioners initially requested and were denied transportation for the 2002-2003 school year.  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 any delay is excused by the Commissioner for good cause shown (8 NYCRR "275.16). 

It is undisputed that petitioners reapplied for transportation at the beginning of the 2003-2004 school year.  It appears from the record that respondent treated this application as a new request rather than a reconsideration.  The transportation supervisor re-measured the distance a number of times and respondent entertained an appeal by petitioners in September 2003.  Respondent denied petitioners 2003-2004 request for transportation by letter dated September 15, 2003 and petitioners commenced this appeal on September 23, 2003.  Therefore, I will not dismiss this appeal as untimely.

 The appeal, however, must be dismissed on the merits.  Education Law "3635 requires that transportation be provided for those students 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 Porzio, 42 Ed Dept Rep __, Decision No. 14,808; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  Similarly, a school district has discretion when selecting the measurement point on a resident"s property, provided that the measurement point is used consistently (see, Appeal of Mogel, supra, where I found that use of the resident"s property line located nearest the school as a measuring point to be an acceptable interpretation of the district"s policy).

  A board of education is neither required to expend an unreasonable amount of time, effort or money in measuring distances for the purpose of determining eligibility for transportation, nor make such measurements with the accuracy of a professional survey (Appeal of Schlick, 40 Ed Dept Rep 207, Decision No. 14,462; Appeal of Stegner, 35 id. 502, Decision No. 13,613; Appeal of Jagoda, 34 id. 154, Decision No. 13,266). 

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).  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 (Appeal of Mogel, supra; Matter of Schulman, 22 Ed Dept Rep 405, Decision No. 11,013).  For those students who are not eligible for 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). 

The Commissioner of Education will uphold a district"s transportation determination, unless it is unreasonable or an abuse of discretion (Appeal of Fuad and Bissar, 43 Ed Dept Rep __, Decision No. 14,923; Appeal of McCarthy and Bacher, 42 id. __, Decision No. 14,872).  The record indicates that respondent reasonably selected the measurement points, measured the distance multiple times and consistently applied its policy.  Accordingly, I cannot conclude that respondent"s determination was arbitrary, capricious, or unreasonable.

Finally, there is nothing in the record to indicate that respondent provided transportation to residents of petitioners" house after respondent revised its transportation policy in 1991.  Even if it had, provision of transportation services previously supplied in error does not require respondent to continue to supply such transportation (Appeal of Turner, 40 Ed Dept Rep 156, Decision No. 14,447; Appeal of Whitaker, 33 id. 59, Decision No. 12,974).