Appeal of PAMELA REILLY, on behalf of her daughter BRITTANY OTIS, from action of the Board of Education of the Levittown Union Free School District regarding transportation.

Decision No. 15,479

(October 23, 2006)

Ingerman Smith, LLP, attorneys for respondent, Jonathan Heidelberger, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Levittown Union Free School District ("respondent") denying her daughter, Brittany, transportation services to a nonpublic school for the 2005-2006 school year.� The appeal must be dismissed.�

On February 7, 2005, respondent received a written request from petitioner for Brittany's transportation to St. William the Abbot School ("SWS"), a nonpublic school, for the 2005-2006 school year for the regularly scheduled hours of 8:15 a.m. to 2:15 p.m.� Sometime between April 1 and June 8, 2005, petitioner asked respondent's transportation supervisor if early bus service could be provided to SWS so that Brittany could attend Math A instruction at 7:15 a.m.� At that time, the transportation supervisor advised petitioner that her request for early bus transportation was late because she did not file a written request prior to the April 1 deadline. �The transportation supervisor also stated that district policy requires a minimum of five students to be transported to establish a special route, and that she was aware of only one other student who required early bus service.�

On June 8, 2005, Brittany's father attended respondent's monthly board meeting and requested early bus service for his daughter.� The parties disagree about whether this request was denied.� On July 6, 2005, petitioner attended the next monthly board meeting to request early bus service for her daughter. �Respondent denied that request.� This appeal ensued.

Petitioner alleges that early bus service is needed so that Brittany can attend Math A instruction, which is only offered in the morning at SWS and requires early arrival.� She further contends that Math A instruction is provided to eighth grade students in respondent's schools and that to deny Brittany early transportation to SWS would deny her equal opportunity.

Respondent alleges that petitioner failed to submit her written request for early transportation prior to the April 1 deadline.� Respondent further contends that it would be inefficient and costly to provide early bus service for petitioner's daughter to SWS.� Specifically, respondent states that it is unreasonable to require the district to transport, at most, two students to SWS prior to the regular school day for academic instruction offered by other secondary public and nonpublic schools during the regular school day.� Respondent also maintains that the appeal is untimely.

The appeal must be dismissed as moot.� The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087).� Since the 2005-2006 school year has ended, petitioner's request for early transportation for the 2005-2006 school year is moot.

Even if the appeal were not moot, I would dismiss it on the merits. �Education Law does not require a board of education to transport children attending nonpublic schools in all circumstances (Appeal of Salvia, 36 Ed Dept Rep 365, Decision No. 13,750; Appeal of Frasier, 35 id. 499, Decision No. 13,612; Appeal of Post, 33 id. 151, Decision No. 13,006).� Authorities at public and nonpublic schools are obligated to cooperate in a reasonable manner in the scheduling of classes and transportation (Appeal of Salvia, 36 Ed Dept Rep 365, 367, Decision No. 13,750; Appeal of Willer, 35 id. 389, Decision No. 13,580; Appeal of Hacker, 28 id. 141, Decision No. 12,058). �Public school authorities may not dictate the opening or closing hours for a nonpublic school, but the adoption of unreasonable or erratic schedules relieves public school authorities of the responsibility for arranging transportation to meet those schedules (seeAppeal of Salvia, 36 Ed Dept Rep 365, Decision No. 13750; Matter of Berger, 22 id. 443, Decision No. 11,028; Matter of Diekmann, 22 id. 445, Decision No. 11,029).� Even if students may be required to attend early schedules or remain for academic courses, public school authorities are not required to provide transportation arrangements beyond what is reasonable (seeAppeal of Salvia, 36 Ed Dept Rep 365, Decision No. 13,750).�

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).� A board of education has broad discretion to determine how transportation is to be provided (Appeal of Del Prete, 40 Ed Dept Rep 148, Decision No. 14,444; Appeal of Reich, 38 id. 565, Decision No. 14,094; Appeal of Broad, 35 id. 248, Decision No. 13,530).� In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of Del Prete, 40 Ed Dept Rep 148, Decision No. 14,444; Appeal of Reich, 38 id. 565, Decision No. 14,094; Appeal of Byrne, et al., 34 id. 389, Decision No. 13,355).�

���� There appears to be no reason why the Math A course cannot be given during the normal school day, as it is at other secondary schools.� In addition, respondent's policy, for both public and nonpublic school students, requires a minimum of five pupils to establish a special route. �Petitioner has only provided the name of one other interested student.� Respondent has further indicated that the district would be compelled to spend approximately $13,000 to provide the requested transportation, and petitioner has failed to refute this contention.� Based upon these facts, I conclude that respondent has not abused its discretion in denying petitioner's early transportation request.

���� In light of this disposition, I need not address the parties' remaining contentions.

THE APPEAL IS DISMISSED.

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