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Decision No. 15,073

Appeal of A STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding transportation.



(June 28, 2004)


Ehrlich, Frazer & Feldman, attorneys for respondent, Jerome H. Ehrlich, Esq., of counsel 

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Hewlett-Woodmere Union Free School District ("respondent") to provide transportation for his son.  The appeal must be dismissed. 

Petitioner"s son is a tenth grade student who attends the Hebrew Academy of the Five Towns and Rockaway ("HAFTR") and also receives special education services at the district"s high school.  Respondent"s transportation policy provides that tenth grade students must reside at least 1.5 miles from the school they legally attend to receive  transportation between home and school.

Petitioner states that for 11 years prior to the 2003-2004 school year, respondent provided transportation for his son between home and school.  In March 2003, respondent"s transportation supervisor notified petitioner"s son that transportation to HAFTR for the 2003-2004 school year was approved, subject to eligibility verification.

Petitioner asserts that on September 3, 2003, his son did not receive bus service to HAFTR.  He claims a district employee informed his son"s mother that his son was not entitled to bus service to HAFTR, but "was on the list" for bus transportation to the high school for special education.  On September 8, 2003, respondent"s business administrator informed the student"s mother that he was not eligible for transportation to HAFTR or to the school district.

By letter dated September 8, 2003, petitioner requested bus transportation for his son, asserting that his residence was 1.53 miles to HAFTR and 1.7 miles to the high school.  By letter dated September 9, 2003, the business administrator responded that the distance measured by the nearest available route between petitioner"s residence and HAFTR, and between his residence and the high school was 1.42 miles and 1.43 miles, respectively, and thus petitioner"s son was ineligible for transportation.  The business administrator further informed petitioner that his son would be provided transportation from the high school to HAFTR as part of his dual enrollment services.

By letter dated September 11, 2003, petitioner disputed the district"s measurements based on "MapQuest," "Yahoo" and measurements made on his personal automobile, all of which exceeded 1.5 miles.  He also claimed that other students on his block received transportation to the high school.  Finally, he requested a new mileage test at which he could be present.

Petitioner observed a re-measurement on September 26, 2003, but disputed its accuracy.  After his demand for transportation was again denied, this appeal ensued.  Petitioner"s request for interim relief was denied on October 30, 2003.

Petitioner argues that respondent"s denial of transportation was arbitrary and capricious.  Petitioner claims that the machine used to measure the distance was at least 12 years old, had tape around it, was not calibrated and "in all likelihood" was not functioning properly.  He also claims that respondent used a 1991 van for the test and the odometer may not have worked properly.  Petitioner further argues that the route started at the school, not the bus stop, and that the measured route was a shortcut that the bus cannot use, and therefore is not the "nearest available route."

Petitioner also contends that his son received transportation in the previous year, that the transportation supervisor had notified his son that the transportation was approved and that, in any event, the distance shortages as measured by the district were deminimus.

Respondent asserts that it is not authorized to provide transportation to petitioner"s son because he resides less than 1.5 miles from each school.  Respondent states that it properly measured the distances between petitioner"s home and each school using the nearest available route, that there is no estoppel against respondent, that the mileage shortage is not deminimus, and that petitioner failed to prove that respondent acted arbitrarily or capriciously.


As a threshold matter, petitioner objects to the timing of respondent"s Affirmation in Opposition to Stay ("affirmation").  Because the stay was denied in October 2003 and respondent has since answered the petition, I need not address this issue (see Appeal of Hoffman, 43 Ed Dept Rep ___, Decision No. 14,953).

The appeal must be dismissed on the merits.  Education Law "3635(1)(a) provides in pertinent part that "transportation shall be provided for all children . . . attending grades nine through twelve who live more than three miles from the school which they legally attend . . . 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).  The voters here approved a lesser distance of 1.5 miles.  Petitioner must meet that objective standard to receive transportation.

Establishing transportation routes and measuring distances are matters within the discretion of a board of education and the Commissioner will not set aside such actions unless it appears that the board has been arbitrary, capricious or unreasonable (Appeal of Mogel, supra;Appeal of Rosen, 37 Ed Dept Rep 107, Decision No. 13,816).  A board of education is neither required to expend an unreasonable amount of time, effort or money in measuring distances to determine eligibility for transportation; nor must it make such measurements with the accuracy of a professional survey (Appeal of Flemming, 43 Ed Dept Rep ___, Decision No. 15,028; Appeal of Schlick, 40 id. 207, Decision No. 14,462; Appeal of Jagoda, 34 id. 154, Decision No. 13,266).

Contrary to petitioner"s allegation, respondent has adequately demonstrated that the device used to measure the distances between petitioner"s home and the two schools was checked and calibrated in May 2001 and again on October 15, 2003, just 19 days and 120 miles after petitioner witnessed the measurements on September 26.  Although a discrepancy of 13 feet per mile (or approximately 20 feet per 1.5 miles) was found in the October 2003 recalibration, respondent correctly points out that this does not compensate for the 391 or 448-foot differential required for transportation.

Moreover, petitioner provides no evidence to substantiate that the odometer on the 1991 test vehicle  may not have been working properly, or to contradict respondent"s assertion that the computerized measuring device operated separately and independently of the odometer in the vehicle"s dashboard.

Petitioner argues that respondent should have measured from the bus drop-off point.  A board of education has reasonable discretion in selecting measuring points for the purpose of determining transportation eligibility, provided that the policy is applied fairly and consistently  (Appeal of Canossa, et al., 37 Ed Dept Rep 456, Decision No. 13,904).  Thus, petitioner fails to prove that respondent abused its discretion in selecting measuring points.

Petitioner also contends that respondent did not measure "the nearest available route," but rather used a shortcut unavailable to a bus.  Education Law "3635 allows school districts to use the nearest available route between a student"s home and school to determine transportation eligibility, including walkways (Appeal of Rosen, supra).  Petitioner fails to prove that petitioner erred in not basing its measurements on a bus route.

Petitioner maintains in the alternative that denying transportation due to a minimal distance shortfall is arbitrary and capricious.  However, the courts have sustained the use of distance as a means of determining eligibility for transportation (Pratt v. Robinson, 45 AD2d 641, aff'd 39 NY2d 554 [1976]; Matter of Studley v. Allen, 24 AD2d 678 [1965]; Appeal of McMillan, 31 Ed Dept Rep 343, Decision No. 12,661).  The fact that the distance between petitioner's home and the school of attendance is nearly 1.5 miles cannot be the basis for the relief sought (Appeal of McMillan, supra).

Finally, there is no merit to petitioner"s claim that a right to transportation was created by respondent"s prior provision of services.  The fact that respondent transported petitioner"s son in prior years does not estop respondent from declining to provide such transportation (Appeal of Robert G., 32 Ed Dept Rep 60, Decision No. 12,758, Appeal of McMillan, supra).  Moreover, respondent has no authority to make an exception to the eligibility requirement of Education Law "3635 merely because it erroneously provided transportation to petitioner"s son in the past (Appeal of Robert G., supra).  If a board of education is providing transportation for a pupil who is not legally entitled to it, the solution is to discontinue such transportation (Appeal of Turner, 40 Ed Dept Rep 156, Decision No. 14,447; Appeal of Whitaker, 33 id. 59, Decision No. 12,974).

In an appeal to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested (8 NYCRR "275.10) and the burden of establishing the facts upon which he seeks relief (Appeal and Application of Davis, 43 Ed Dept Rep ___, Decision No. 15,007).  Petitioner has failed to meet his burden of proving that respondent"s actions were arbitrary or capricious.

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