Appeal of A STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Somers Central School District regarding transportation.

Decision No. 15,844

(October 24, 2008)

Neal H. Rosenberg, Esq., attorney for petitioners

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

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

During the 2007-2008 school year, petitioners’ son, a student with a disability, began attending the Kildonan School (“Kildonan”), a nonpublic school, located outside of respondent’s district.  Pursuant to Education Law §4402(4)(d), a board of education must provide transportation up to a distance of 50 miles to and from a nonpublic school which a student with a disability attends if such child attends such school for the purpose of receiving services or programs similar to special educational programs recommended for such child by the local committee on special education (“CSE”).  Respondent has not disputed that petitioners’ son is a student with a disability or that Kildonan offers a program similar to the one recommended by respondent’s CSE.

By letter dated May 13, 2007, petitioners requested that the district provide transportation for their son between their residence and Kildonan for the 2007-2008 school year.  Upon receiving petitioners’ request, the transportation supervisor obtained driving directions to and from petitioners’ residence and Kildonan from two Internet websites.  He then installed a New York State Department of Transportation calibrated distance measuring device into a district-owned vehicle and measured the distance from petitioners’ driveway to Kildonan by using a route that included travel on the Taconic State Parkway.  The transportation supervisor concluded that petitioners live in excess of 50 miles from Kildonan and, therefore, denied their transportation request.

By letter dated May 16, 2007, petitioners requested that the transportation supervisor reconsider the denial of their transportation request.  By letter dated June 4, 2007, the transportation supervisor advised petitioners that their transportation request was denied because, interalia, the distance was in excess of 50 miles.  Petitioners did not appeal this determination.

On February 28, 2008, petitioners requested transportation for their son between their residence and Kildonan for the 2008-2009 school year.  Neither petitioners’ nor Kildonan’s address had changed.  Based on his previous calculations, the transportation supervisor, by letter dated March 27, 2008, denied petitioners’ request because the distance from their residence to Kildonan exceeded the 50 mile limit contained in Education Law §4402(4)(d).  This appeal ensued.

Petitioners contend that the district’s determination that their son is ineligible for transportation is arbitrary and capricious.  Petitioners maintain that when the nearest available route is used their residence is less than 50 miles from Kildonan.  To substantiate this claim, petitioners have submitted driving directions from two different Internet websites that indicate that the distance from their home to Kildonan is 49.4 miles.  Neither set of directions involve travel on the Taconic State Parkway. Petitioners request an order directing respondent to provide transportation to their son.

Respondent asserts that it is not required to provide transportation to petitioners’ son because their residence is more than 50 miles from Kildonan.  Respondent states that it properly measured the distance from petitioners’ residence and Kildonan and that petitioners have failed to prove that respondent acted arbitrarily or capriciously.  Respondent also maintains that the petition is untimely.

I must first address petitioners’ reply.  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.

Respondent asserts that the appeal is untimely because petitioner initially requested transportation for the 2007-2008 school year.  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).

In this case, it is apparent that respondent required petitioners to submit a transportation request for the 2008-2009 school year and respondent denied such request on the basis of distance elgibility.  Respondent’s denial letter was dated March 27, 2008, and petitioners commenced this appeal on April 23, 2008.  Therefore, I will not dismiss this appeal as untimely.

Pursuant to Education Law §4402(4)(d), a board of education must provide transportation up to a distance of 50 miles to and from a nonpublic school which a student with a disability attends when certain requirements, which are not at issue here, are met.  However, Education Law §4402(4)(d), is silent as to how to measure distance for transportation eligibility purposes.  Consequently, under the principles of statutory construction, I must consider related provisions of the Education Law (see McKinney’s Statutes §221).  Since the subject matter of both Education Law §§4402(4)(d) and 3635(1)(a) is transportation eligibility, these two statutes are inparimateria and I will therefore apply the measurement standard found in Education Law §3635(1)(a) to §4402(4)(d).

Education Law §3635(1)(a) requires a district to measure distance by the nearest available route between home and school.  The issue in this case centers upon the route that may be used to measure the distance between petitioners’ home and Kildonan.  Petitioner contends that the distance should be measured using the nearest available route from their home to Kildonan.  Respondent contends that the distance should be measured using the Taconic State Parkway route because it is, interalia, safer and more time and fuel efficient.

Establishing transportation routes and measuring distances are 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. Rep 127, Decision No. 14,636; Appeal of Rosen, 37 id. 107, Decision No. 13,816).  In this case, I find that the district acted unreasonably because it did not use the nearest available route to determine the student’s eligibility for transportation to Kildonan. Respondent’s actions were therefore not in compliance with the transportation eligibility standard contained in Education Law §3635(1)(a) (Appeal of Sanguine, et al., 48 Ed Dept Rep ___, Decision No. 15,830).  Furthermore, petitioners submitted driving directions from two Internet websites that establish that the distance between petitioners’ home and Kildonan is 49.4 miles.  Respondent has not disputed this claim.

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 request was arbitrary and capricious.  Therefore, I find that petitioner’s son is entitled to transportation to and from Kildonan because their home is less than 50 miles from the school.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent provide transportation to petitioners’ son to and from Kildonan for the 2008-2009 school year.

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