Appeal of EILEEN A. WELCH, on behalf of her daughter BRIDGET, from action of the Board of Education of the East Islip Union Free School District regarding transportation.

Decision No. 15,829

(August 26, 2008)

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

AHEARN, Acting Commissioner.--Petitioner appeals the refusal of the Board of Education of the East Islip Union Free School District (“respondent”) to transport her daughter, Bridget, from her residence to her assigned elementary school.  The appeal must be dismissed.

Pursuant to its transportation policy, respondent provides transportation to pupils in grades K-3 who live one-half mile from the school they attend.  For purposes of calculating this mileage, respondent’s policy provides that it is “the distance from [a] resident’s driveway at roadside to the nearest pedestrian entrance to school property over the most direct public route.”

Bridget is a district resident who is scheduled to attend respondent’s John F. Kennedy Elementary School (“elementary school”) in the 2008-2009 school year.  From the record, it appears that this elementary school has at least two pedestrian entrances -- one directly in front of the school building and another at the back corner of the property (the “back-corner entrance”).  Petitioner and Bridget live closest to the back-corner entrance, which, according to respondent, is fully maintained and provides paved access to the elementary school building.

Petitioner’s request that respondent transport Bridget to and from the elementary school during the 2008-2009 school year was denied because petitioner lived less than one-half mile from the elementary school’s back-corner entrance.  Petitioner appealed to respondent, which, by letter dated May 28, 2008, also denied her request.  This appeal ensued.

Petitioner does not dispute that she lives less than one-half mile from the elementary school’s back-corner entrance.  Instead, petitioner maintains that since this entrance is .2 of a mile away from the elementary school building, Bridget would have to walk more than one-half mile to school and is thus entitled to transportation.  Moreover, petitioner asserts that respondent’s use of pedestrian entrances as measurement points for determining eligibility for transportation was not approved by district voters, and that since it results in the use of multiple measurement sites on school property, respondent is not making measurement determinations “consistently and fairly.”  Petitioner, therefore, argues that respondent should use one point on school property to determine transportation eligibility for all students.

Respondent, among other things, denies petitioner's allegations and argues that its policies, which have been in effect since 1978, are rational in all respects.  In addition, respondent maintains that voter approval of its method of measuring distances for purposes of determining transportation eligibility is not necessary.

Petitioner has submitted a reply for my consideration.  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 E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  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 school district must provide transportation for all children attending grades kindergarten through eight who live between 2 and 15 miles from school and for all children attending grades 9 through 12 who live between 3 and 15 miles from school, the distances in each case being measured by the nearest available route from home to school (Education Law §3635[1][a]; Appeal of Trader, 43 Ed Dept Rep 191, Decision No. 14,967; Appeal of Wenger, 37 id. 5, Decision No. 13,790).  Transportation for a lesser or greater distance than that set forth in statute may only be provided upon approval by the voters of the district (Education Law §3635[1][a]; Appeal of Trader, 43 Ed Dept Rep 191, Decision No. 14,967; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  If such transportation is provided, it must be offered equally to all students in like circumstances residing in the district (Education Law §3635[1][a]; Appeal of Trader, 43 Ed Dept Rep 191, Decision No. 14,967; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  Here, respondent has adopted a policy for transporting students for lesser distances than is required by law.

A board of education is neither required to expend an unreasonable amount of time, effort or money in measuring distances for the purpose of determining eligibility for transportation, nor make such measurements with the accuracy of a professional survey (Appeal of Flemming, 43 Ed Dept Rep 391, Decision No. 15,028; Appeal of Schlick, 40 id. 207, Decision No. 14,462; Appeal of Stegner, 35 id. 502, Decision No. 13,613).  It is reasonable and sufficient to use an automobile odometer to measure distance to determine eligibility (Appeal of Schlick, 40 Ed Dept Rep 207, Decision No. 14,462; Appeal of Adamitis, 38 id. 765, Decision No. 14,137; Appeal of Jagoda, 34 id. 154, Decision No. 13,266).

Moreover, a school district has broad discretion in selecting measurement points on school property for purposes of determining eligibility for transportation (Appeal of Flemming, 43 Ed Dept Rep 391, Decision No. 15,028; Appeal of Porzio, 42 id. 166, Decision No. 14,808).  It may measure transportation distances from any part of the school or a resident’s property, so long as it does so fairly and consistently (Appeal of Flemming, 43 Ed Dept Rep 391, Decision No. 15,028; Appeal of Porzio, 42 id. 166, Decision No. 14,808; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  Commissioner's decisions have upheld measurements using a variety of reference points, such as a corner of the school property (Appeal of Canossa, et al., 37 Ed Dept Rep 456, Decision No. 13,904), a side entrance of the school (Appeal of Mermelstein, et al., 30 Ed Dept Rep 119, Decision No. 12,406), the point at which the child first comes in contact with the grounds of the school he or she attends (Appeal of Pavony, et al., 27 Ed Dept Rep 295, Decision No. 11,951), a point at the entrance gate to the school grounds (Matter of Feldblum, 4 Ed Dept Rep 156, Decision No. 7499) and the mid-point of the school (Matters of Silbert, et al. and Fitzpatrick, 1 Ed Dept Rep 283, Decision No. 6607).  Furthermore, there is nothing improper about a district using multiple entrances as a means to measure distance, provided a uniform policy is adopted (Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636; Matters of Silbert, et al. and Fitzpatrick, 1 id. 283, Decision No. 6607).  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 Bissar, 43 id. 74, Decision No. 14,923).

I am unable to find on the record before me that respondent’s use of “pedestrian entrances” as measurement points for purposes of determining transportation eligibility is improper or unreasonable.  As an initial matter, unlike the decision to offer transportation for greater or lesser distances than is required by statute, the setting of measurement points does not require voter approval.  That respondent’s use of “pedestrian entrances” may result in the use of multiple measurement points, or that some entrances may require students to walk farther than others, does not alone render their use unreasonable or inconsistent.  This is especially true where, as here, the record reflects that respondent has a long-standing policy of designating these entrances as measurement points, and there is nothing to suggest that this policy is not being applied uniformly.  Nor is there anything in the record to suggest that these entrances are otherwise unreasonable or unsafe.

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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  On the record before me, I find that petitioner has failed to meet this burden.

THE APPEAL IS DISMISSED.

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