Appeal of NATHAN GOULD and NATALIE HALL, on behalf of their children ZOEY GOULD and TRENT HALL, from action of the Board of Education of the Honeoye Falls-Lima Central School District regarding transportation.

Decision No. 16,074

(June 22, 2010)

Wendy Lee Gould, Esq., attorney for petitioners

Wayne A. Vander Byl, Esq., attorney for respondent

STEINER, Commissioner.--Petitioners appeal the denial by the Board of Education of the Honeoye Falls-Lima Central School District (“respondent”) of their request for certain transportation services. The appeal must be dismissed.

Petitioners reside in respondent’s district on a road known as Hyde Park in Honeoye Falls, New York.  Shortly after moving into their residence on Hyde Park, petitioners requested transportation to and from school for their children, Zoey and Trent.  While respondent’s personnel agreed to provide transportation for petitioners’ children, petitioners were advised that transportation services would not be provided on Hyde Park because the road was considered too hazardous for a bus.  This decision was affirmed by the district’s safety committee (“safety committee”) on July 10, 2008.

In the summer of 2008, petitioners met with respondent’s superintendent and transportation director to discuss the safety committee’s determination.  Respondent’s superintendent determined that the safety committee’s decision would stand, and in August 2008 a pick-up/drop-off location (“pick-up point”) was established for petitioners’ children at the intersection of North Main Street and Hyde Park.[1]  On November 4, 2008, petitioners’ attorney addressed respondent at a public meeting (the “November 4 meeting”) and requested that its policy of not providing transportation services on Hyde Park be reviewed and changed.  The official minutes of that meeting indicate that the superintendent and transportation director agreed to continue working with petitioners.  However, respondent’s policy with respect to Hyde Park did not change, and on June 9, 2009, petitioners’ attorney again addressed respondent and requested that it revise its policy.  By letter dated June 30, 2009 (but apparently not received until July 30, 2009), respondent notified petitioners that it would not put this request on its meeting agenda.  This appeal ensued.

Petitioners argue that Hyde Park is safe for buses, and they maintain that respondent has failed to objectively support its claim to the contrary.  In addition, petitioners contend that respondent provides transportation service on roads similar to Hyde Park and to students that are “similarly situated” to their children.  Petitioners, therefore, argue that respondent’s refusal to provide transportation service on Hyde Park is arbitrary and capricious and request that I order respondent to provide such service.  Petitioners also contend that there is no safe way for their children to reach the pick-up point established by respondent at North Main Street and Hyde Park.

Respondent contends that it has not provided transportation services on Hyde Park for over 30 years due to safety concerns and asserts that its policy is based on the judgment of its drivers and transportation directors.  Respondent also maintains that Hyde Park is not similar to the roads cited by petitioners.  Respondent, therefore, denies that its decision was arbitrary or capricious.  In addition, respondent argues that petitioners’ appeal is untimely.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of A.D., 46 Ed Dept Rep 236, Decision No. 15,492; Appeal of Wright, 45 id. 356, Decision No. 15,347).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of Johnson, 46 Ed Dept Rep 432, Decision No. 15,555; Appeal of A.W., 46 id. 367, Decision No. 15,535).

Respondent contends that the district considered petitioners’ request in the summer of 2008, notified them of its decision at that time, and that their requests in November 2008 and June 2009 constituted requests for reconsideration.  However, while it appears from the record that respondent’s superintendent informed petitioners by email in August 2008 that the decision of the district’s safety committee would stand and the district would provide transportation from a pick-up point, there is nothing in the record to suggest that respondent had adopted its superintendent’s determination or clearly notified petitioners that no further action on their request was contemplated until its June 30, 2009 letter (seee.g.Appeal of Nicastri, 29 Ed Dept Rep 321, Decision No. 12,308) (time to commence appeal began when clear indication given that no further action was intended).  Indeed, when petitioners’ attorney raised the transportation issue with respondent at its November 4, meeting, respondent’s president recommended that petitioners continue to work with the superintendent and the transportation director.  This suggests that the matter was still pending.  Accordingly, since petitioners commenced this appeal within 30 days of receiving respondent’s June 30, 2009 letter, I will not dismiss it as untimely.

Petitioners’ complaint regarding the pick-up point at North Main Street and Hyde Park, however, 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).  The record reflects that subsequent to establishing a pick-up point at North Main Street and Hyde Park, respondent established a different pick-up point for petitioners’ children at its Manor School.[2] Petitioners’ challenge to the pick-up point at North Main Street and Hyde Park, therefore, is moot.

A board of education has broad discretion to determine how transportation is to be provided (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of McCarthy and Bacher, 42 id. 329, Decision No. 14,872).  In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of McCarthy and Bacher, 42 id. 329, Decision No. 14,872).  Moreover, a board of education has both the responsibility and the authority to decide difficult questions in balancing the overall efficiency and economy of a transportation system against the convenience of individual students (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of McCarthy and Bacher, 42 id. 329, Decision No. 14,872).

Furthermore, a board of education may exercise its discretion when designating pick-up and drop-off points, provided that the board uses reasonable care in exercising such discretion (Appeal of Morgan, 46 Ed Dept Rep 474, Decision No. 15,568; Appeal of Girsdansky, 46 id. 105, Decision No. 15,455). In establishing a pick-up point, a board of education must balance considerations of pupil safety and convenience, routing efficiency and costs (Appeal of Morgan, 46 Ed Dept Rep 474, Decision No. 15,568; Appeal of Girsdansky, 46 id. 105, Decision No. 15,455; Appeal of Galdun, 45 id. 222, Decision No. 15,307). The law does not require a school district to provide transportation for the pupil directly to and from home (Education Law §3635[1][d]; Ossant v. Millard, 72 Misc 2d 384) and boards of education have discretion to require students to walk to pick-up points from which transportation will be provided (Appeal of Girsdansky, 46 Ed Dept Rep 105, Decision No. 15,455). Where a student’s home is on a dangerous road or at a remote location, the parents are not free from the obligation to assist the student in reaching the pick-up point. It is the responsibility of the parent, not the district, to see that the child safely reaches the pick-up point (Appeal of Morgan, 46 Ed Dept Rep 474, Decision No. 15,568; Appeal of Galdun, 45 id. 222, Decision No. 15,307).

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).

Here, the record reflects that Hyde Park is a relatively narrow road with sharp turns, no shoulders and limited visibility in spots.  In addition, the record reflects that respondent – which has a long-standing policy of not providing transportation services on Hyde Park - considered petitioners’ request for transportation and that the members of its safety committee personally examined the road.  Furthermore, the record indicates that respondent obtained and considered a risk evaluation of Hyde Park from its insurance company which, among other things, noted that the road could be challenging to even experienced bus drivers, and suggested either using “one of the most skilled drivers” on the road or avoiding it, if possible.  While petitioners attempt to discredit this risk evaluation and even submit evidence that Hyde Park complies with New York State highway design standards, I am unable to find on the record before me that respondent’s determination with respect to Hyde Park was unreasonable or an abuse of discretion.

THE APPEAL IS DISMISSED.

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