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Decision No. 15,046

Appeal of WILLIAM and REGINA HEFFERNAN, on behalf of their son MATTHEW, from action of the Boards of Education of the Highland Central School District and the New Paltz Central School District regarding transportation.


(May 6, 2004)


Shaw & Perelson, LLP, attorneys for respondents, Margo L. May and David S. Shaw, Esqs., of counsel 

MILLS, Commissioner.--Petitioners challenge the decision of the Board of Education of the Highland Central School District ("Highland") denying their son, Matthew, transportation to a nonpublic school.  The appeal must be dismissed.

Petitioners reside within Highland"s school district.  For the past few years, Matthew has attended John A. Coleman High School ("Coleman"), a nonpublic school.  During the 2001-2002 and 2002-2003 school years, Highland transported Matthew to Coleman through a cooperative arrangement with the Board of Education of the New Paltz Central School District ("New Paltz").  Pursuant to this arrangement, Highland transported Matthew to the New Paltz Middle School and New Paltz transported him from the middle school to Coleman.

In April 2003, petitioners made a request to both respondents for transportation.  In May 2003, New Paltz"s director of transportation discovered that Matthew did not reside within 15 miles of Coleman.  The director relayed this information to Highland"s director of transportation and indicated that New Paltz would not transport Matthew to Coleman during the 2003-2004 school year.  After learning of New Paltz"s position, Matthew"s mother advised Highland"s director of transportation by letter dated August 18, 2003 that Highland"s former transportation director had determined that the Heffernan home was less than 14 miles from Coleman.  This letter prompted New Paltz"s transportation department to measure the distance between petitioners" home and Coleman using at least two different routes.  In each case, the distance exceeded 15 miles.

Although the record is somewhat unclear, it appears that petitioners were advised in late August 2003 that their request for transportation was denied.  Petitioners thereafter appealed this determination to Highland"s superintendent.  It is not clear whether petitioners received any response.  This appeal ensued.  Petitioners" request for interim relief was denied on November 26, 2003.

Petitioners contend that respondents" decision to deny Matthew transportation is arbitrary and capricious, and seek a determination that Matthew is entitled to transportation to Coleman.

Highland contends that it properly denied petitioners" request for transportation because petitioners do not reside within 15 miles of Coleman and the district does not transport any other eligible district student there.  New Paltz asserts that it has no obligation to transport Matthew because petitioners are not residents of New Paltz"s school district.

Education Law "3635(1) establishes a system of entitlement to transportation services to nonpublic schools. Transportation between a pupil"s home and the nonpublic school that the pupil attends must be provided if the distance between such home and school is within the statutorily prescribed limits for such transportation. Although the statute requires a board of education to provide transportation for elementary school pupils between home and school for distances of between 2 and 15 miles and for secondary school pupils between home and school for distances of between 3 and 15 miles, the minimum distance may be shortened and/or the maximum distance may be extended by local district policy after approval by district voters (Education Law "3635[1][a]). In this case, there is no indication that voters have elected to extend the maximum distance beyond 15 miles.

Additionally, transportation may be furnished for certain other pupils attending a nonpublic school in accordance with Education Law "3635(1)(b)(i). A school district providing transportation to a nonpublic school for pupils living within the specified distances from such school must designate one or more public schools as centralized pickup points, and must provide transportation between such pickup points and such nonpublic school for pupils residing too far from the nonpublic school to qualify for regular transportation between home and school. The statute does not require transportation from centralized pickup points to any nonpublic school to which regular home-to-school transportation is not already being provided (Appeal of Porzio, 42 Ed Dept Rep 166, Decision No. 14,808; Appeal of Lucente, 40 id. 455, Decision No. 14,526; Appeal of Scali, 38 id. 727, Decision No. 14,127).

Education Law "3635(1)(b)(ii) further states that a board of education "may, at its discretion," provide transportation from a centralized pickup point for pupils residing within the district to a nonpublic school located more than 15 miles from the home of any such pupil, provided that transportation has been provided to the nonpublic school in at least one of the immediately preceding three school years. When a school district exercises its discretion to provide transportation pursuant to Education Law "3635(1)(b)(ii), the distance from the pickup point to the nonpublic school must not be more than 15 miles.

In this case, there is no evidence that transportation is required pursuant to Education Law "3635(1)(a) or (b). Highland determined, and petitioners do not dispute in this appeal, that they reside more than 15 miles from Coleman, thus making Matthew ineligible under "3635(1)(a).  Nor is there any evidence that another Highland student attends this nonpublic school.  The fact that a New Paltz student may attend Coleman does not obligate Highland to provide transportation to Matthew.  Thus, Matthew is not eligible for transportation under "3635(1)(b)(i).

Although Highland apparently erroneously provided transportation to Matthew in the past, the provision of transportation services previously supplied in error does not require respondent to continue to supply such transportation (Appeal of Bank, et al., 40 Ed Dept Rep 141, Decision No. 14,442; Appeal of Whitaker, 33 id. 59, Decision No. 12,974). As the Commissioner stated in Whitaker, "If a board of education is providing transportation for pupils who are not legally entitled to it, the solution is to discontinue such transportation and not . . . to compound the error and illegally transport additional pupils."

Moreover, even if Matthew were eligible for transportation under "3635(1)(b)(ii), provision of transportation under this provision is wholly within Highland"s discretion (Appeal of Porzio, supra).  Accordingly, petitioners have failed to demonstrate that their son is entitled to the requested transportation.