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Decision No. 15,121


Appeal of SUZANNE COWLEY, on behalf of her daughters DANA and KRISTIN, from action of the Board of Education of the Greece Central School District regarding transportation.


Decision No. 15,121


(September 30, 2004)


Harris Beach LLP, attorneys for respondent, James A. Spitz and Laura M. Purcell, Esqs., of counsel



MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Greece Central School District (�respondent�) denying her request to change the location of her daughters� transportation pick-up point.  The appeal must be dismissed.

Prior to the 2003-2004 school year, district students were provided transportation directly from home to school.  As a cost-saving measure, respondent eliminated door-to-door transportation for the 2003-2004 school year and adopted a system of centralized bus stops.  Petitioner�s daughters and 22 other children were assigned a pick-up point at the intersection of Long Pond Road and Larkins Crossing.

In the fall of 2003, petitioner and other parents requested that the bus stop be relocated to an allegedly safer address on Long Pond Road, some 30 feet from the intersection.  By letter dated December 1, 2003, respondent�s director of transportation (�director�) denied the request.  This appeal ensued.

Petitioner claims that the bus stop is hazardous and that respondent ignored safety concerns and police statistics regarding the intersection.  Petitioner asserts that the bus passes the proposed new bus stop, so there would be no rerouting or additional stops.  Petitioner asserts, therefore, that respondent has acted arbitrarily and capriciously in denying her request to relocate the bus stop.  Petitioner seeks permanent relocation of the bus stop to the Long Pond Road address and confirmation from the district that her children will not suffer any repercussions as a result of her actions.

Respondent asserts that the appeal must be dismissed as untimely.  Respondent further contends that petitioner has failed to prove that the district�s decision was arbitrary or capricious or that the bus stop at issue is unsafe.  Respondent also asserts that petitioner seeks an inappropriate remedy under Education Law �310.

I must first address two procedural issues.  Petitioner�s reply contains affidavits from a parent and a daycare provider of children who use the bus stop in question.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an 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 Crosier, 42 Ed Dept Rep 232, Decision No. 14,835).  The affidavits contain allegations that could have been included in the petition.  Therefore, while I have reviewed petitioner�s reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must also be dismissed as untimely.  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).  By letter dated December 1, 2003, respondent notified petitioner of its �final decision� on her request and that it �consider[ed] the matter closed.�  Petitioner acknowledged receiving the letter on December 3, 2003, which therefore required her to initiate this appeal no later than January 2, 2004.  Respondent states that district offices were open for business on that date, yet petitioner failed to serve the petition until January 6, 2004, rendering the appeal untimely.

Even if it were not dismissed on procedural grounds, the appeal would be dismissed on the merits.  A board of education may exercise its discretion when designating pick-up points provided that the board uses care in exercising such discretion (Appeal of Eason, 43 Ed Dept Rep ___, Decision No. 14,970; Appeal of Gulla, 39 id. 716, Decision No. 14,358; Appeal of Rheaume-Wellenc, 37 id. 83, Decision No. 13,811).  In establishing pick-up points, a board of education must consider and balance considerations of pupil safety and convenience, routing efficiency and costs (Appeal of Eason, supra; Appeal of Gulla, supra; Appeal of Rheaume-Wellenc, supra; Appeal of Warner, 37 Ed Dept Rep 469, Decision No. 13,907).

Education Law �3635 does not require a school district to provide students transportation directly to and from their homes (Ossant v. Millard, 72 Misc. 2d 384; Appeal of O�Connell, 37 Ed Dept Rep 22, Decision No. 13,794) and boards of education have discretion to require students to walk to pick-up points from which transportation will be provided (Appeal of Raymond, 39 Ed Dept Rep 774, Decision No. 14,376; Appeal of Hobbs, 38 id. 203, Decision No. 14,015; Appeal of Marsh, 36 id. 134, Decision No. 13,680).  It is the responsibility of the parents, not the district, to see that their child safely reaches the pick-up point (Pratt v. Robinson, 39 NY2d 554; Appeal of Rheaume-Wellenc, supra).

According to the director, the change to a centralized system generated over 1,400 parental requests for pick-up point changes.  She states that as of February 2004, 828 changes were approved where:  all parents of students assigned to a bus stop agreed to a location change; or there were medical needs of a student; or safety factors required a change.

Here, the parents of two children at the bus stop in question would not agree to relocate the stop.  The district investigated changing the stop of those two students to achieve unanimity.  However, the bus operations expeditor (�expeditor�) concluded that was not feasible because it would have required the two students to walk a greater distance and to walk in the streets in the winter.

The director and the expeditor also analyzed the safety of the bus stop using the criteria for child safety zones under Education Law �3635-b.  According to the expeditor, the children walk on a sidewalk approximately five feet wide located approximately eight feet from the road, and they do not cross an intersection.  Accordingly, he found no basis to recommend a change in pick-up point to the director.  He also noted no other hazards to warrant a recommendation to change the stop location.  The director�s supervisor and the assistant superintendent for finance also visited the site and determined that a change was not warranted.

After examining the evidence presented by the parties, I conclude that respondent acted reasonably and within its discretion in declining to change the pick-up point.  The record indicates that respondent thoroughly investigated petitioner�s concerns and applied consistent criteria in evaluating petitioner�s request.  While I am sympathetic to petitioner�s concerns about safety, I find no basis to overturn respondent�s decision.

In light of this disposition, I need not address petitioner�s remaining arguments.