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Decision No. 15,669

Appeal of KELLY TIGHE, on behalf of her daughter HALEIGH, from action of the Board of Education of the Hyde Park Central School District regarding transportation.


Decision No. 15,669

(October 9, 2007)


Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, Bryn Sarvis Pace, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Hyde Park Central School District (“respondent”) denying her request for transportation for the 2007-2008 school year between the public school her daughter, Haleigh, attends and a child care location.  The appeal must be dismissed.

On March 8, 2007, petitioner requested transportation between the public school Haleigh attends and a “group family day care home” located within respondent’s district.  By letter dated April 3, 2007, respondent denied petitioner’s transportation request on the grounds that Haleigh’s “group family day care home” is not located within her public school attendance zone.  This appeal ensued.

Petitioner argues that respondent’s denial of her transportation request violates Education Law.  Respondent contends that the appeal must be dismissed as untimely and for failure to state a claim upon which relief can be granted. 

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).  Petitioner was notified of respondent’s transportation determination by letter dated April 3, 2007.  However, the appeal was not served on respondent until July 16, 2007, well more than 30 days later.  Petitioner offers no excuse for her lateness in filing this appeal.  Consequently, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed as untimely, it would be dismissed on the merits.  Respondent’s transportation policy mirrors the language of Education Law §3635(1)(e), which provides that a board of education has the discretion to determine whether to offer transportation between schools located within the district and child care programs located within the district (Appeal of a Student Suspected of Having a Disability, 38 Ed Dept Rep 507, Decision No. 14,081; Appeal of Grove, 33 id. 176, Decision No. 13,016; Appeal of Albert, 27 id. 371, Decision No. 11,979).  If a board elects to provide transportation to a child care location, it may limit such transportation to child care locations within the child’s attendance zone and to “child day care centers” and “school age child care programs” licensed or registered pursuant to Social Services Law §390, where transportation must be provided district-wide (Education Law §3635[1][e]).

Petitioner acknowledges that her daughter attends a “group family day care home” rather than a “child day care center” or a “school age child care program” licensed under Social Services Law §390.  Section 390 defines these three types of daycare programs differently and specifically excludes a “group family day care home” from the definition of “child day care center.” 

Based on the applicable law and the record before me, I find that, under Education Law §3635(1)(e) and Social Services Law §390, a “group family day care home” such as the one Haleigh attends, is not a “child day care center” or “school age child care program” to which respondent is obligated to provide district-wide transportation.  Respondent therefore acted within its discretion in denying petitioner’s request for transportation to a “group family day care home” outside Haleigh’s school attendance zone.