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Decision No. 15,398

Appeal of ROBERT C. KINKEAD, on behalf of his daughter KASANDRA LYNN, from action of the Board of Education of the Shenendehowa Central School District regarding transportation.

Decision No. 15,398

(April 18, 2006)


McCary & Huff, LLP, attorneys for respondent, Kathryn McCary, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Shenendehowa Central School District ("respondent") to change the transportation pick-up and drop-off point ("bus stop") assigned to his daughter Kasandra. The appeal must be dismissed.

Petitioner and Kasandra, a kindergartner, reside on Wesley Avenue in the Village of Round Lake, New York ("village"). For the 2005-2006 school year, respondent assigned Kasandra to a bus stop located at the intersection of Lake and Troy Avenues. Petitioner requested that the bus stop be changed to a municipal building located closer to his residence. The Assistant to the Superintendent denied this request, stating that the transportation director had inspected the area suggested by petitioner and concluded that it was not safe. He offered however, to study the possibility of a smaller bus for the return home, which could result in a closer stop. Currently, petitioner's daughter is being transported home on a smaller bus, and is being dropped off at the municipal building that petitioner suggested.

Petitioner contends that Kasandra's assigned bus stop is unsafe and that this stop violates respondent's safety guidelines and New York State Education Department guidance. Petitioner requests, among other things, that I direct respondent to change his daughter's bus stop to their residence. Respondent denies that the assigned bus stop violates district policy or is unsafe.

Before reviewing the merits of petitioner's appeal, I must first address petitioner's reply. 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 Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188). Therefore, while I have reviewed the 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.

A board of education may exercise its discretion in designating pick-up and drop-off locations (Appeal of Di Napoli 38 Ed Dept Rep 269, Decision No. 14,030; Appeal of Marsh, 36 id. 134, Decision No. 13,680). In establishing a pick-up or drop-off point, a board of education must consider and balance pupil safety and convenience, routing efficiency and costs (Appeal of Kelsey, 38 Ed Dept Rep 396, Decision No. 14,063; Appeal of O'Connell, 37 id. 22, Decision No. 13,794). The Commissioner of Education will uphold a district's transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Smith, 44 Ed Dept Rep 201, Decision No. 15,148; Appeal of Flemming, 43 id. 391, Decision No. 15,028; Appeal of Fuad and Bissar, 43 id. 74, Decision No. 14,923).

Education Law �3635 does not require that districts provide students with door-to-door transportation to and from school (Appeal of Hurwitz, 43 Ed Dept Rep 463, Decision No. 15,051; Appeal of Kelsey, 38 id. 396, Decision No. 14,063). Moreover, boards of education have discretion to require students to walk to and from pick-up and drop-off points (seeAppeal of Rheaume-Willenc, 37 Ed Dept Rep 83, Decision No. 13,811). When a student's home is on a dangerous road or at a remote location, it is the responsibility of the parent, not the district, to see that the child safely reaches the pick-up point (Appeal of Raymond and Raymond, 39 Ed Dept Rep 774, Decision No. 14,376; Appeal of Warner, 37 id. 469, Decision No. 13,907; Appeal of Rheaume-Wellenc, 37 id. 83, Decision No. 13,811). Thus, the mere fact that petitioner's daughter must walk to her bus stop does not render it unsafe. Likewise, neither do the other conditions cited by petitioner - the lack of sidewalks and shoulders - which are common to many rural and suburban areas, and that by themselves, are not unsafe (seee.g. Appeal of Hurwitz, 43 Ed Dept Rep 463, Decision No. 15,051; Appeal of O'Connell, 37 id. 22, Decision No. 13,794; Appeal of Marsh, 36 id. 134, Decision No. 13,680).

Respondent explains that because streets within the village are narrow, short and require frequent turns, that navigating a full-sized school bus through them is difficult, especially in inclement weather. The bus stop assigned to petitioner's daughter, according to respondent, allows drivers to avoid maneuvering a full-sized school bus through these streets and is among the safest stops in the district.

In support of his position, petitioner cites New York State Education Department guidance to districts that recommends, among other things, there be "sufficient room 15 feet from the roadway for all students assigned to bus stops to wait comfortably and safely." Respondent argues that it would be virtually impossible to designate a bus stop in the village at which students could wait more than 15 feet from the street. While the Department's guidance may generally recommend a certain distance, such distance is not mandated by statute or regulation. Accordingly, the fact that the bus stop assigned to petitioner's daughter may not have 15 feet of space off the roadway is by itself not sufficient for me to deem the stop unsafe, or to award the relief that petitioner seeks.

In sum, on the record before me, I cannot find respondent's decision to be arbitrary, capricious or an abuse of discretion.

Although the appeal is dismissed, I note that both parties concede that petitioner's daughter is currently being dropped off at the municipal building in Round Lake, which the district originally rejected as unsafe. This may be explained by the district's use of a smaller bus. Respondent should review the statement regarding the stop's safety and adjust it, if necessary, based on the changed circumstances.