Appeal of CARLENE and FRED SANGUINE, DEBORAH and MARK BERNARDINI and TAMMY and ERIC WIEGAND, on behalf of their respective children, JOE SANGUINE, KAI BERNARDINI, AUSTIN WIEGAND and ALAINA WIEGAND, from action of the Board of Education of the Somers Central School District regarding transportation.

Decision No. 15,830

(August 26, 2008)

Asher, Gaughran LLP, attorneys for petitioners, Rachel Asher, Esq., of counsel

Keane & Beane, P.C., attorneys for respondent, Aileen T. Noonan, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioners appeal the refusal of the Board of Education of the Somers Central School District (“respondent”) to provide transportation for their children to a nonpublic school.  The appeal must be sustained.

Petitioners reside within respondent’s district and their children attend the Wooster School (“Wooster”), a nonpublic school, located outside the district.  During the 2007-2008 school year, the district provided petitioners’ children with transportation to and from their homes to Wooster.

During the 2007-2008 school year, petitioners timely requested transportation for their children to and from their homes to Wooster for the 2008-2009 school year.  By letter dated April 11, 2008, the district’s transportation/safety supervisor denied petitioners’ request for transportation  because he had determined that petitioners do not reside within 15 miles of Wooster and that the district would not be transporting any other transportation eligible district students there during the 2008-2009 school year.

Petitioner Carlene Sanguine (“Mrs. Sanguine”) contacted the transportation/safety supervisor to request that he reconsider her request.  Mrs. Sanguine further informed him that she believed that the distance between the driveway of her home and Wooster was less than 15 miles.  In response to her request, the transportation/safety supervisor and his assistant drove from the foot of Mrs. Sanguine’s driveway to the student drop-off point at Wooster to measure the mileage.  The route used for this trip to Wooster was Interstate 84 and the transportation/safety supervisor measured the distance to be 18.9 miles.  On the return trip, the transportation/safety supervisor drove from Wooster to the Sanguine residence using an alternative route that used “back roads” instead of Interstate 84 and he measured the distance for this trip to be 16.3 miles.  Based on these measurements, by letter dated April 29, 2008, the transportation/safety supervisor advised Mrs. Sanguine that her transportation request was denied because the distance from her home to Wooster was in excess of 15 miles.

Shortly thereafter, Mrs. Sanguine contacted the district’s director of instructional services (“director”), to request that he review the transportation/safety supervisor’s determinations.  Mrs. Sanguine also suggested an alternative route for the district to use to measure the distance from her home to Wooster.  Subsequently, the director instructed the transportation/safety supervisor to measure the distance from the Sanguine residence and Wooster using the route suggested by Mrs. Sanguine.  In using this route, the transportation/safety supervisor and his assistant calculated the distance from the Sanguine residence to Wooster to be 14.7 miles.

By email dated May 2, 2008, the director advised Mrs. Sanguine that although the route she suggested was 14.7 miles, the district was still denying her request to transport her son, Joe, to Wooster, because the transportation/safety supervisor considered the suggested route to be less safe than the Interstate 84 route to Wooster because it required the use of “back roads.”  The email further stated that the transportation/safety director had determined that Mrs. Sanguine’s suggested route was less efficient than the Interstate 84 route that he preferred because it would involve more travel time, fuel consumption and wear and tear on district vehicles.  This appeal ensued.

Petitioners Carlene and Fred Sanguine (“Sanguine petitioners”) contend that their son, Joe, is entitled to transportation because the nearest available route between their home and Wooster is less than 15 miles.  To substantiate this claim, the Sanguine petitioners have submitted driving directions from an Internet website showing that the distance from their home to Wooster is 14.24 miles and the email from the director acknowledging that Mrs. Sanguine’s suggested route from their home to Wooster is 14.7 miles.  Although they acknowledge that their residences are in excess of 15 miles from Wooster, petitioners Deborah and Mark Bernardini (“Bernardini petitioners”) and Tammy and Eric Wiegand (“Wiegand petitioners”) allege that their children are also entitled to transportation to and from Wooster based on Joe Sanguine’s eligibility for transportation.  Petitioners contend that respondent’s decision to deny their children transportation is arbitrary and capricious, and seek a determination that their children are entitled to transportation to Wooster.

Respondent contends that it properly denied petitioners’ requests for transportation because none of the petitioners reside within 15 miles of Wooster and the district will not be transporting any other transportation eligible students to Wooster during the 2008-2009 school year.

Respondent objects to portions of petitioners’ reply that allegedly include assertions that should have been included in the petition.  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.

Education Law §3635(1) establishes a system of entitlement to transportation services to nonpublic schools.  Transportation between a pupil’s home and the nonpublic school that the pupil attends must be provided if the distance between such home and school is within the statutorily prescribed limits for such transportation (Education Law §3635[1][a]; Appeal of Bittlingmaier, 45 Ed Dept Rep 213, Decision No. 15,305; Appeal of Heffernan, 43 id. 447, Decision No. 15,046; Appeal of Porzio, 42 id. 166, Decision No. 14,808).  Although the statute requires a board of education to provide transportation for elementary school pupils between home and school for distances of between 2 and 15 miles and for secondary school pupils between home and school for distances of between 3 and 15 miles, the minimum distance may be shortened and/or the maximum distance may be extended by local district policy after approval by district voters (Education Law §3635[1][a]; Appeal of Bittlingmaier, 45 Ed Dept Rep 213, Decision No. 15,305; Appeal of Heffernan, 43 id. 447, Decision No. 15,046; Appeal of Porzio, 42 id. 166, Decision No. 14,808).

Additionally, transportation may also be furnished for certain other pupils attending a nonpublic school in accordance with Education Law §3635(1)(b)(i).  A school district providing transportation to a nonpublic school for pupils living within the specified distances from such school must designate one or more public schools as centralized pick-up points, and must provide transportation between such pick-up points and such nonpublic school for pupils residing too far from the nonpublic school to qualify for regular transportation between home and school. The statute does not require transportation from centralized pick-up points to any nonpublic school to which regular home-to-school transportation is not already being provided (Appeal of Bittlingmaier, 45 Ed Dept Rep 213, Decision No. 15,305; Appeal of Heffernan, 43 id. 447, Decision No. 15,046; Appeal of Porzio, 42 id. 166, Decision No. 14,808).

Education Law §3635(1)(b)(ii) further states that a board of education "may, at its discretion," provide transportation from a centralized pick-up point for pupils residing within the district to a nonpublic school located more than 15 miles from the home of any such pupil, provided that transportation has been provided to the nonpublic school in at least one of the immediately preceding three school years (Appeal of Bittlingmaier, 45 Ed Dept Rep 213, Decision No. 15,305; Appeal of Lucente, 40 id. 455, Decision No. 14,526; Appeal of Goldstein, 40 id. 159, Decision No. 14,448). When a school district exercises its discretion to provide transportation pursuant to Education Law §3635(1)(b)(ii), the statute requires that the distance from the centralized pick-up point to the nonpublic school must not be more than 15 miles (Appeal of Bittlingmaier, 45 Ed Dept Rep 213, Decision No. 15,305; Appeal of Turner, 40 id. 156, Decision No. 14,447; Appeal of Bank, et al., 40 id. 141, Decision No. 14,442).  In this case, the district has not extended the maximum distance for transportation.

The issue in this case centers upon the route that may be used to measure the distance between the Sanguine petitioners’ home and Wooster.  Petitioners contend that the distance should be measured using the nearest available route from the Sanguines’ home to Wooster.  Respondent contends that the distance should be measured using the Interstate 84 route because it is, interalia, safer and more time and fuel efficient.

Establishing transportation routes and measuring distances is within the discretion of a board of education, and the Commissioner will not set aside such actions unless it appears that the board has been arbitrary, capricious or unreasonable (Appeal of a Student with a Disability, 43 Ed Dept Rep 524, Decision No. 15,073; Appeal of Mogel, 41 id. 127, Decision No. 14,636; Appeal of Rosen, 37 id. 107, Decision No. 13,816).  However, Education Law §3635(1)(a) provides that the distance be measured by the nearest available route from home to school.  Therefore, I find that respondent acted unreasonably because it did not use the nearest available route to determine Joe Sanguine’s eligibility for transportation to Wooster.  Instead, respondent used what it has described as the safest, most direct and efficient route for this purpose.  Respondent’s actions are not in compliance with the transportation eligibility standard contained in Education Law §3635(1)(a).  Respondent has conceded that when the route suggested by Mrs. Sanguine is used, the distance between the Sanguine residence and Wooster is 14.7 miles.

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).  Based on the record, petitioners have met their burden of proving that respondent’s denial of their transportation requests were arbitrary and capricious.  Therefore, I find that the Sanguine’s son, Joe, is entitled to transportation to and from Wooster.  I further find that both the Bernardini petitioners’ and Wiegand petitioners’ children are entitled to transportation between Wooster and a centralized pickup point based on Joe Sanguine’s transportation eligibility and the provisions of Education Law §3635(1)(b)(i).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent shall provide transportation to all of petitioners’ children for the 2008-2009 school year in accordance with this decision.

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