Appeal of S.T., on behalf of her daughter J.T., from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding transportation.

Decision No. 15,894

(March 13, 2009)

Sullivan Papain Block McGrath & Cannavo P.C., attorneys for petitioner, Deanne M. DiBlasi, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Christopher Venator, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”) denying her daughter transportation to a nonpublic school. The appeal must be dismissed.

Petitioner removed her daughter from respondent’s high school on July 1, 2008 and enrolled her in a nonpublic school for the 2008-2009 school year. On July 30, 2008, petitioner requested that respondent provide her daughter with transportation to and from the nonpublic school.  By letter dated August 4, 2008, respondent’s business administrator denied petitioner’s request explaining that petitioner’s daughter was ineligible for transportation because the distance between her home and the nonpublic school exceeded 15 miles. 

By letter dated August 7, 2008, petitioner appealed to respondent.  On September 3, 2008, respondent upheld the business administrator’s decision.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 29, 2008.

Petitioner contends that given the circumstances surrounding her daughter’s transfer to the nonpublic school in July 2008, she is entitled to transportation.  Petitioner claims that respondent’s decision to deny her daughter transportation was unreasonable in light of such circumstances.

Respondent asserts that its decision denying transportation was made in accordance with applicable law and policy.  It contends that regardless of the reason for Julia’s transfer, a school district is without authority, absent voter approval, to provide transportation beyond the statutory distance limits.  Respondent asserts that its voters have not approved transportation exceeding 15 miles and that it does not transport any other students to the nonpublic school. Respondent also argues that the appeal should be dismissed because the transportation request was untimely. 

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, respondent contends, and petitioner does not dispute, that petitioner resides more than 15 miles from the nonpublic school and that there has been no voter authorization for transportation beyond 15 miles.  Respondent maintains that it does not transport any students to the nonpublic school, nor has it done so within the immediately preceding three school years.  Accordingly, respondent is not required, nor is it authorized, to provide the requested transportation.

THE APPEAL IS DISMISSED.

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