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Decision No. 15,945

Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by her mother, from action of the Board of Education of the Oceanside Union Free School District regarding transportation.

Decision No. 15,945

(July 24, 2009)

Frazer & Feldman, LLP, attorneys for respondent, Joseph Carbonaro, Esq., of counsel

Huxley, Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Oceanside Union Free School District (“respondent”) denying her daughter transportation to and from the public school that she attends.  The appeal must be dismissed.

Petitioner’s daughter received transportation through the 9th grade.  When her daughter entered 10th grade in the 2008-2009 school year, respondent no longer provided her with transportation because the distance from her home to the high school is less than three miles which is the district’s transportation mileage limitation for that grade.  Petitioner sought transportation for her daughter based on a medical condition.  Respondent denied the request and this appeal ensued.  Petitioner’s request for interim relief was denied on March 4, 2009.

Petitioner contends that her daughter’s medical condition limits her ability to walk long distances and therefore, respondent should be required to provide her with transportation to and from school.

Respondent submits that its decision was proper and that the student’s medical condition does not constitute a disability that requires respondent to provide the requested transportation.

The appeal must be dismissed for lack of jurisdiction.  The crux of petitioner’s appeal is that respondent must provide transportation to her daughter because she has a medical disability.  An appeal to the Commissioner is not the proper forum in which to raise alleged violations of the Americans with Disabilities Act (42 USC §§12101-12134) (Appeals of a Student Suspected of Having a Disability, 46 Ed Dept Rep 539, Decision No. 15,588; Appeal of Mogel, 41 id. 127, Decision No. 14,636; Appeal of Cochran et. al., 35 id. 555, Decision No. 13,631). Additionally, enforcement of §504 of the Rehabilitation Act of 1973 (29 USC §794) lies with the federal courts, the U.S. Department of Justice and the U.S. Department of Education (Appeal of a Student Suspected of Having a Disability, 43 Ed Dept Rep 487, Decision No. 15,061; Appeal of a Student With a Disability, 39 id. 752, Decision No. 14,369) and may not be obtained in an appeal brought pursuant to Education Law §310.