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Decision No. 16,269

Appeal of K.G and A.G., on behalf of their children, from action of the Board of Education of the North Shore Central School District regarding transportation.

Decision No. 16,269

(July 29, 2011)

Platte, Klarsfeld, Levine & Lachtman, LLP, attorneys for petitioners, Jeffrey Klarsfeld, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Warren H. Richmond, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the refusal of the Board of Education of the North Shore Central School District (“respondent”) to change a transportation pick-up point.  The appeal must be dismissed.

Petitioners reside in respondent’s district on a private road in a new residential development.  Respondent currently provides transportation for petitioners’ children at a designated bus stop, approximately 0.4 to 0.5 miles from petitioners’ residence.  Petitioners requested, by letter dated July 13, 2010, that respondent relocate the bus stop to either the front of their home or to a closer cul-de-sac on their street.  By email dated July 26, 2010, the superintendent of schools informed petitioners that their request was denied because of “safety factors.”  The superintendent indicated that respondent would be open to reconsider the determination in the future, if factors such as population, traffic, and/or number of homes changed.  This appeal ensued.

Petitioners argue that respondent’s denial was arbitrary, capricious, unreasonable and an abuse of discretion.  Petitioners assert that the denial was not, in fact, based on safety factors but, rather, because petitioners’ home is on a private road with a cul-de-sac and they are the only family currently requesting transportation.  In support of their assertion, petitioners note that respondent expressed willingness to reconsider at a future time.  Petitioners also claim that there are other streets, similar in structure to theirs, where respondent provides a bus stop.  Petitioners state that there would be no cost to respondent if the bus stop were moved, and the extra distance the bus would travel would be minimal.  Petitioners argue that there is no “line of sight” between their home and the current bus stop, that their children are too young to walk alone and that one child has an individualized education program (“IEP”), increasing the risk to his safety if he must walk to the current bus stop.

Respondent claims that its refusal to change the location of the bus stop is based on safety issues because a bus traveling on petitioners’ street would have to navigate a “dead end” cul-de-sac and because their street is narrower than the current bus stop location.  Respondent denies that its determination is arbitrary and capricious and asserts that the fact it would be willing to reconsider the matter in the future under changed circumstances does not render its current decision improper.  Finally, respondent argues that, while petitioners’ child is a student with a disability, there is nothing in the child’s IEP requiring a pickup point closer to home, nor does the IEP require specialized transportation.

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 Brizell, 48 Ed Dept Rep 128, Decision No. 15,814; Appeal of Petrella, 48 id. 45, Decision No. 15,789).  In establishing a pick-up point, a board of education must balance considerations of pupil safety and convenience, routing efficiency and costs (Appeal of Brizell, 48 Ed Dept Rep 128, Decision No. 15,814; Appeal of Petrella, 48 id. 45, Decision No. 15,789).  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 Brizell, 48 Ed Dept Rep 128, Decision No. 15,814; Appeal of Weinschenk, 47 id. 518, Decision No. 15,770).

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of A.P., 48 id. 380, Decision No. 15,891).

Here, the record reflects that respondent determined that petitioners’ street is a cul-de-sac with a narrow turnaround on which it would be unsafe for a school bus to traverse.  Although the current bus stop requires that the bus turn around on another cul-de-sac, the transportation supervisor provided a sworn affidavit in which he attests that the other cul-de-sac is wider and does not present similar safety concerns as the narrower one near petitioners’ home.  Petitioners attempt to discredit respondent’s rationale by noting the district’s willingness to re-visit the bus stop location at some future point.  However, I find that such a generalized statement regarding possible future action by respondent does not render respondent’s current determination arbitrary and capricious.

Petitioners also claim that one of their children is a student with a disability and, thus, requires a bus stop closer to home because of heightened safety risks.  I have reviewed the student’s IEP and note that it does not require a specific bus stop or specialized transportation.

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).  Although I am sympathetic to petitioners’ concerns, on the record before me I am unable to conclude that respondent’s determination is arbitrary or capricious, unreasonable or an abuse of discretion.

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