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Decision No. 16,213

Appeal of M.L., on behalf on his son J.L., from action of the Board of Education of the Lawrence Union Free School District regarding transportation.

Decision No. 16,213

(March 31, 2011)

Minerva & D’Agostino, P.C., attorneys for respondent, Roslyn Z. Roth, Esq. of counsel

STEINER, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Lawrence Union Free School District (“respondent”) to transport his son, J.L., to a nonpublic school.  The appeal must be dismissed.

In March 2010, petitioner submitted a timely request for J.L.’s transportation between home and Torah Temina, a nonpublic school.  Petitioner was initially told that his request was approved but subsequently told that it was denied because he does not live within 15 miles of Torah Temina.  This appeal ensued.

Petitioner contends that both an odometer and a Global Positioning System (“GPS”) reading indicate that his home is less than 15 miles from Torah Temina.  Petitioner maintains that the mapping programs used by respondent, “MapQuest” and “Rand McNally,” did not locate his home correctly and are not accurate.  Petitioner maintains that he never received written notice of respondent’s determination and that by the time he received verbal notice it was too late to make arrangements for J.L. to attend another school.

Respondent asserts that it is not required to provide J.L. transportation because his residence is more than 15 miles from Torah Temina.  Respondent maintains that it properly measured the distance from petitioner’s residence to Torah Temina and that establishing transportation routes and measuring distances are within its discretion.  Finally, respondent contends that petitioner’s assertion that he enrolled J.L. in Torah Temina in reliance on his ability to secure transportation does not entitle J.L. to transportation.

I must first address a procedural matter.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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 S.T., 48 Ed Dept Rep 389, Decision No. 15,894; Appeal of Hughes, 48 id. 299, Decision No. 15,865; Appeal of Keller, 47 id. 224, Decision No. 15,677).  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).  Here, the voters have not approved transportation beyond the 15 mile limit.

Establishing transportation routes and measuring distances are within the discretion of the board of education, and the Commissioner will not set aside such actions unless it appears that the board has been arbitrary, capricious or unreasonable (Appeal of a Student with a Disability, 48 Ed Dept Rep 223, Decision No. 15,844; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073).  A board of education is neither required to expend an unreasonable amount of time, effort or money in measuring distances for the purpose of determining eligibility for transportation, nor make such measurements with the accuracy of a professional survey (Appeal of Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Schwab, 47 id. 73, Decision No. 15,630; Appeal of Flemming, 43 id. 391, Decision No. 15,028).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Respondent determined that the distance between petitioner’s home and Torah Temina was greater than 15 miles using two Internet websites, “Mapquest” and “Rand McNally”.  The supervisor of transportation (“supervisor”) avers that both searches were performed using the “shortest distance” command.  In his petition, petitioner challenges the accuracy of those programs and also disputes the route utilized by such programs.  However, other than a magazine article generally critiquing online maps, the petition is devoid of any proof in support of petitioner’s contentions.  Moreover, such articles do not constitute evidence of the truth of the statements contained therein (seeAppeals of Ryan, Starbuck and Toomey, 50 Ed Dept Rep __, Decision No. 16,202).

Petitioner does submit a picture of his GPS screen to establish that the distance between his home and Torah Temina is less than 15 miles.  However, the picture shows only a very small component of some route, apparently in Brooklyn.  I am unable to draw any conclusion from the snapshot.  Petitioner also argues that he provided respondent with directions for a route between his home and Torah Temina that is less than 15 miles.  However, the parties dispute whether the route actually leads to the school.  At best, petitioner raises questions as to whether respondent acted reasonably in establishing the transportation route and measuring the distance between petitioner’s home and Torah Temina.  On this record, however, petitioner has not established facts, or a clear legal right, entitling him to the relief sought.

To the extent petitioner asserts that respondent should be estopped from denying his transportation request due to his reliance on an initial representation by district personnel, such relief can not be granted.  Except in limited circumstances, not applicable here, estoppel does not apply against a government subdivision (Parkview Assoc. v. City of New York, et al., 71 NY2d 274; Hamptons Hosp. and Medical Center v. Moore, et al., 52 NY2d 88; Appeal of Ibrahim, 39 Ed Dept Rep 155, Decision No. 14,200; Appeal of Holzer, et al., 37 id. 549, Decision No. 13,924).

In light of this disposition, I need not consider the parties’ remaining contentions.  Although I am constrained to dismiss the appeal, I encourage respondent to review its procedures for measuring distances between home and school and work with parents to resolve these matters in a collaborative manner to avoid unnecessary disputes.