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Decision No. 15,938

Appeal of C.C. and E.C., on behalf of their son M.C., from action of the Board of Education of the Greenburgh Central School District regarding transportation.   

Decision 15,938

(June 29, 2009)

Littman Krooks LLP, attorneys for petitioners, Adrienne J. Arkontaky, Esq., of counsel

Keane & Beane, P.C., attorneys for respondent, Stephanie M. Roebuck, Esq. of counsel

MILLS, Commissioner.--Petitioners challenge the refusal of the Board of Education of the Greenburgh Central School District (“respondent”) to provide transportation to their son, M.C., to attend middle school in another school district.  The appeal must be dismissed.

M.C. is a resident of the Greenburgh Central School District who attends Ardsley Middle School in the Ardsley Union Free School District (“Ardsley”) as a non-resident tuition student.  Petitioners requested transportation from their home to the Ardsley Middle School for the 2008-2009 school year.  Respondent refused to provide the requested transportation and this appeal ensued.

Petitioners state that M.C. has been identified as a student requiring accommodations under §504 of the Rehabilitation Act of 1973 (“§504”) and that the specialized instruction that he receives in Ardsley is essential for his educational needs.  Petitioners argue that M.C.’s attendance is analogous to a unilateral placement in a private school and therefore, respondent should be required to provide the requested transportation under the law and district policy.  Petitioners also argue that respondent’s decision is arbitrary and capricious because respondent transports other district students to Ardsley.  Petitioners seek an order directing respondent to provide the requested transportation to their son for the 2008-2009 school year.

Respondent argues that the appeal should be dismissed as untimely and that petitioners have failed to state a cause of action.  Respondent affirmatively states that it has programs and related services within its schools that could meet M.C.’s needs that petitioners have chosen not to access.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Since the 2008-2009 school year has ended petitioners’ request for transportation for that school year is moot.

Even if the appeal were not moot, I would dismiss it on the merits.  It is well settled that a board of education is not obligated to provide transportation to students enrolled in the public schools of another school district where the board of education offers an instructional program for such students (Appeal of M.G. and J.G., 40 Ed Dept Rep 336, Decision No. 14,491; Appeal of Ortiz, 34 id. 341, Decision No. 13,333; Appeal of Franzenburg, 33 id. 284, Decision No. 13,049).  Respondent offers a middle school program, and therefore is not obligated by statute to provide transportation to a public middle school operated by another school district.  The fact that petitioners may prefer the Ardsley program over respondent’s program does not require respondent to provide transportation. 

Respondent contends, and petitioners do not refute, that the district does not provide any students who attend public schools outside the district with transportation unless they have been classified as students with disabilities and placed in such schools by respondent pursuant to an individualized education program.  M.C. is not similarly situated to those students.  Accordingly, I cannot find respondent’s decision to be arbitrary or capricious. 

Moreover, to the extent petitioners assert that respondent is discriminating against M.C. based on his alleged disability, enforcement of §504 is within the jurisdiction of the federal courts, the U.S. Department of Justice and the U.S. Department of Education and may not be obtained in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 108, Decision No. 15,806; Appeal of a Student Suspected of Having a Disability, 40 id. 75, Decision No. 14,425; Appeal of a Student with a Disability, 39 id. 752, Decision No. 14,369).