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Decision No. 15,313

Appeal of GREG ROHDE, on behalf of his daughter JENNIFER, from action of the Board of Education of the Harrison Central School District regarding transportation.

Decision No. 15,313

(October 18, 2005)

Ingerman Smith, LLP, attorneys for respondent, Mary Anne Sadowski, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Harrison Central School District ("respondent") to provide transportation for his daughter. The appeal must be dismissed.

Petitioner lives .9 miles from respondent's Purchase Elementary School ("Purchase"). Petitioner's daughter attended the fourth grade at Purchase beginning in September 2004.  By letter dated August 3, 2004, respondent's purchasing and transportation agent advised petitioner that implementation of a new software system revealed that the district had been providing transportation to a number of children who were ineligible under respondent's transportation policy, and that the district would not transport his daughter during the 2004-2005 school year.

By letter dated August 18, 2004, petitioner asked respondent to stay, for one year, the implementation of its decision to discontinue transportation. Respondent denied petitioner's request, and this appeal ensued. On October 13, 2004, petitioner's request for interim relief was denied.

Petitioner alleges that his daughter's route to school is hazardous and that the timing of respondent's decision denied him the opportunity to request the creation of a child safety zone for the 2004-2005 school year. Petitioner also states that respondent's past transportation practice supersedes its written policy and that the district would incur no additional expense if it transported his daughter.

Respondent asserts that the appeal is untimely. Respondent also contends that petitioner's distance from school does not fall within the parameters of respondent's transportation policy and that petitioner has not requested the establishment of a child safety zone.

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; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). When petitioner was notified that respondent would not provide transportation for his daughter, he promptly made a written request that respondent delay implementation of its decision. By letter dated August 27, 2004, and received on August 31, 2004, the superintendent denied petitioner's request. Since petitioner commenced this appeal within 30 days of receipt of the superintendent's letter, I find the appeal to be timely.

The Commissioner of Education will uphold a district's transportation determination, unless it is unreasonable or an abuse of discretion (Appeal of Bissar, 43 Ed Dept Rep 74, Decision No. 14,923; Appeal of McCarthy and Bacher, 42 id. 329, Decision No. 14,872). Respondent's policy provides for the transportation of students in grades 4 through 12 who live one mile or further from district schools. Petitioner acknowledges that he lives .9 miles from the school where his daughter is enrolled in the fourth grade.  Accordingly, she does not meet the criteria of respondent's written policy. Furthermore, a child safety zone has not been established in the area where petitioner resides.

Respondent's erroneous provision of transportation services in the past does not require respondent to continue to supply such transportation (Appeal of Flemming, 43 Ed Dept Rep 391, Decision No. 15,028; Appeal of Turner, 40 id. 156, Decision No. 14,447; Appeal of Whitaker, 33 id. 59, Decision No. 12,974). On the record before me, I cannot conclude that respondent's determination was arbitrary, capricious, or unreasonable.