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Decision No. 16,009

Appeal of W.H., on behalf of her daughter M.H., from action of the Board of Education of the City School District of the City of Rensselaer regarding transportation.

Decision No. 16,009

(January 28, 2010)

Girvin & Ferlazzo, P.C., attorneys for respondent, Tara L. Moffett, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Rensselaer (“respondent”) denying nonpublic school transportation for her daughter, M.H.  The appeal must be dismissed.

M.H. is a student at the Emma Willard School (“Emma Willard”), a nonpublic school located outside of respondent’s district.  According to petitioner, she transferred M.H. to Emma Willard due to respondent’s “difficulty accommodating gifted children.”  Petitioner’s request for M.H.’s transportation to Emma Willard was denied.  This appeal ensued.

Petitioner maintains that respondent should provide M.H. transportation to Emma Willard.  Respondent argues, among other things, that petitioner has failed to prove that she is entitled to the relief requested.

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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  On the record before me I find that petitioner has failed to meet this burden.

A city school district may, but is not required to, provide transportation to students (Education Law §3635[1][c]).  Where such district elects to provide transportation, it must do so equally to all students in like circumstances (Education Law §3635[1][c]; SandsPoint Academy, et al. v. Bd. of Educ., 63 Misc 2d 276; Appeal of Zeller, 45 Ed Dept Rep 337, Decision No. 15,340).  The Commissioner of Education has held that students in different grades are not in “like circumstances” and that city school districts may establish transportation policies that make distinctions by grade level (Appeal of Cassin, et al., 32 Ed Dept Rep 373, Decision No. 12,859).  Similarly, students attending schools within a district and those attending schools outside of a district are not in “like circumstances” (seee.g.O'Donnell, et al. v. Antin, et al., 81 Misc 2d 849, affd 36 NY2d 941, appeal dismissed, 423 US 919; Appeal ofWelka, 36 Ed Dept Rep 158, Decision No. 13,688).

Here, respondent has a policy of providing transportation via public bus carrier for any student attending an out-of-district school (public or nonpublic) who resides more than one and one-half miles (1.5) from the school the student attends.  Respondent contends, and petitioner does not dispute, that transportation to and from Emma Willard via public carrier is available to petitioner’s daughter under this policy, and has been offered to petitioner.  The use of public transportation instead of duplicating routes by school buses is one way of reducing the costs of pupil transportation and is neither illegal nor unreasonable (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Clancy, 37 id. 280, Decision No. 13,859; Appeal of Lavin, 32 id. 249, Decision No. 12,821).

Further, the law does not require a school district to provide transportation for students directly to and from their home (Education Law §3635[1][d]; Ossant v. Millard, et al., 72 Misc 2d 384; Appeal of Brizell, 48 Ed Dept Rep 128, Decision No. 15,814).  Thus, to the extent petitioner seeks door-to-door transportation for her daughter, her appeal must be dismissed.

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Morgan, 46 Ed Dept Rep 474, Decision No. 15,568; Appeal of Girsdansky, 46 id. 105, Decision No. 15,455).  There is nothing in the record before me to suggest that respondent’s transportation policy is unreasonable or that it has been applied in an unfair or inconsistent manner.

In light of this disposition, I need not address the parties’ remaining contentions.


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