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Decision No. 16,459


 Appeal of KARINE CASCIANO, on behalf of her son MATEO, from action of the Board of Education of the Rye Neck Union Free School District regarding transportation.

Decision No. 16,459

(March 25, 2013)

Shaw, Perel son, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Rye Neck Union Free School District (“respondent”) regarding the mode of transportation for her son. The appeal must be dismissed.

Petitioner’s son attended kindergarten during the 2011-2012 school year at the French American School of New York (“FASNY”), a nonpublic school located within respondent’s district. According to the record, respondent provided no general transportation to its public school students during the 2011-2012 school year because no student lived outside the two or three mile walking distances permitted under Education Law §3635. Petitioner submitted a timely request for transportation to FASNY for the 2011-2012 school year. In July 2011, respondent granted petitioner’s request and notified petitioner that her son would be provided transportation using public buses via a centralized transit center. This appeal ensued.

Petitioner argues that respondent’s proposed means of transportation is unreasonable, inadequate, unsafe and inappropriate for her five-year-old son.

Respondent denies petitioner’s allegations and asserts that the transportation provided is reasonable and appropriately balances considerations of safety, convenience, economy and efficiency.

I will 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 and275.14). 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 petitioner’s 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.

The appeal 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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). Since the 2011-2012 school year has ended, petitioner’s request for transportation during that school year is academic.

However, even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Petitioner contends that requiring her son to use public transportation and transfer between public buses is inappropriate, given her son’s age and grade. While I appreciate petitioner’s concerns for her son’s safety, a board of education has broad discretion to determine how transportation is to be provided (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814). In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814). 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 A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).

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).

Previous Commissioner’s decisions have held that it is not arbitrary or capricious for a district to provide young children with transportation via public carrier. (Appeal of Lavin, 32 Ed Dept Rep 249, Decision No. 12,821). In the instant case, the record indicates that respondent considered various possible transportation routes to be used. Respondent balanced the needs of 106 children attending 27 nonpublic schools, including those of three other children attending FASNY. The transportation respondent ultimately provided petitioner’s son did not require him to walk distances in excess of those permitted under Education Law §3635 or spend excessive time in transit.

Petitioner complains that her son must transfer from one public bus to another as part of the transportation provided by respondent. The fact that a transfer from one public transit facility to another is required to practically effectuate student transportation does not invalidate a district’s transportation plan (Appeal of Clancy, 37 Ed Dept Rep 280, Decision No. 13,859; Appeal of Lavin, 32 id. 249,Decision No. 12,821).

Petitioner notes, relying on State Education Department guidance, that a school district must provide reasonable supervision of pupils at transfer points (see New York State Education Department, Transportation for Students Enrolled in Nonpublic Schools, Updated February 2012, Available: Initially, I note that, while the guidance makes general recommendations which have probative value when considering what may or may not be reasonable in particular circumstances, such recommendations are not mandated by statute or regulation (see Appeal of Gorsky and Burbank, et al., 47 Ed Dept Rep 162, Decision No. 15,658). Here, petitioner fails to allege any specific facts at all regarding the degree to which supervision is or is not provided by respondent at required transfer points between public buses. Thus, on this record, I am unable to assess the reasonableness of respondent’s actions in that regard.

On this record, I cannot find that petitioner has met her burden of proof. Other than conclusory allegations that young age, in and of itself, makes the particular mode of transportation provided by respondent unreasonable, petitioner has presented no further specifics or support for her arguments. Accordingly, her claims must fail.

Finally, petitioner speculates that the public transportation provided “would seem” to be more costly than a direct private bus. In contrast, respondent provides an affidavit by its Assistant Superintendent for Business and Finance setting forth the cost savings realized by respondent’s transportation method. On the record, I cannot conclude that respondent’s actions are arbitrary, capricious, unreasonable or contrary to law.