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Decision No. 17,257

Appeal of CHAIM and CHANA MINTZ, on behalf of their daughter MALKA, from action of the Board of Education of the Lawrence Union Free School District regarding transportation.

Decision No. 17,257

(November 15, 2017)

Minerva & D’Agostino, P.C., attorneys for respondent, Christopher G. Kirby, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Lawrence Union Free School District (“respondent”) to deny their request for transportation for their daughter (“the student”) to a non-public school for the 2016-2017 school year.  The appeal must be dismissed.

During the 2016-2017 school year, petitioners were residents of the district and petitioners’ daughter was a student in third grade in respondent’s district attending Hebrew Academy of Long Beach (“Hebrew Academy-Long Beach”), a non-public school located in Long Beach, New York.  Respondent’s transportation policy #3545 provides that students in grades 1 through 5 are eligible for bus transportation only if they live at or beyond one half mile from the school which they attend.  It is undisputed that the student was eligible for transportation to and from Hebrew Academy-Long Beach based upon grade and distance calculations during the 2016-2017 school year.

On or about February 3, 2017, petitioners were notified by email that once Hebrew Academy-Long Beach moved to its new location, their daughter would no longer be eligible for transportation under the district’s rules.  On or about March 6, 2017, Hebrew Academy moved its location in Long Beach to Woodmere, New York (“Hebrew Academy-Woodmere”).  This appeal ensued.  Petitioners’ request for interim relief was denied on March 10, 2017. 

Petitioners assert that respondent’s determination to deny their daughter transportation was improper because it is inconsistent with the district’s transportation policy.  Petitioners assert that when they measure the distance between the school and their residence using online websites, the shortest walking distance is greater than one half mile.  Petitioners challenge the measurement point used by respondent (the corner of Church Avenue/Zola Street) to calculate the distance between the school and petitioners’ residence, and the calculation methodologies employed by respondent. 

Respondent argues that its distance determination was consistent with its transportation policy and, therefore, is not arbitrary and capricious.  Respondent further asserts that its measurement of distance between the student’s school and petitioners’ home is proper and consistent with the district’s policy for calculating the walking distance for all students.

First, I must address the procedural issues.  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.

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).  Petitioners’ transportation request concerns the 2016-2017 school year.  Since that school year has ended, the appeal is moot (see Education Law §3635[2]; Appeal of Ceriello, 56 Ed Dept Rep, Decision No. 17,094).  

To the extent that petitioners are seeking transportation for the student beyond the 2016-2017 school year, the appeal must be dismissed as premature.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).  The record does not indicate that petitioners have requested and that the student has been denied transportation for the 2017-2018 school year (see Education Law §3635[2]).  Therefore, petitioners’ claim relating to future transportation to Hebrew Academy-Woodmere is not justiciable and must be dismissed.

Nevertheless, even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  A school district has broad discretion in selecting measurement points on school property for purposes of determining eligibility for transportation (Appeal of Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Flemming, 43 id. 391, Decision No. 15,028).  It may measure transportation distances from any part of the school or a resident’s property, so long as it does so fairly and consistently (Appeal of Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Flemming, 43 id. 391, Decision No. 15,028; Appeal of Porzio, 42 id. 166, Decision No. 14,808).  Commissioner's decisions have upheld measurements using a variety of reference points, such as a corner of the school property (Appeal of Canossa, et al., 37 Ed Dept Rep 456, Decision No. 13,904), a side entrance of the school (Appeal of Mermelstein, et al., 30 Ed Dept Rep 119, Decision No. 12,406), the point at which the child first comes in contact with the grounds of the school he or she attends (Appeal of Pavony, et al., 27 Ed Dept Rep 295, Decision No. 11,951), a point at the entrance gate to the school grounds (Matter of Feldblum, 4 Ed Dept Rep 156, Decision No. 7,499) and the mid-point of the school (Matters of Silbert, et al. and Fitzpatrick, 1 Ed Dept Rep 283, Decision No. 6,607).  Furthermore, there is nothing improper about a district using multiple entrances as a means to measure distance, provided a uniform policy is adopted (Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636; Matters of Silbert, et al. and Fitzpatrick, 1 id. 283, Decision No. 6,607).

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).  It is reasonable and sufficient to use an automobile odometer to measure distance to determine eligibility (Appeal of Schlick, 40 Ed Dept Rep 207, Decision No. 14,462; Appeal of Adamitis, 38 id. 765, Decision No. 14,137; Appeal of Jagoda, 34 id. 154, Decision No. 13,266).

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).

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).

As noted above, respondent’s transportation policy for nonpublic schools (Policy #3545) provides that students in grades 1 through 5 are eligible for bus transportation only if they live at or beyond one half mile from the school they attend.  In an attempt to establish that petitioners reside outside the one half mile limit, petitioners measured the distance from their home to the school using the Googlemaps, Yahoo and Mapquest websites and found the shortest walking distance is greater than one half mile.  However, petitioners used a different measurement point than that used by respondent.  Petitioners assert that respondent improperly used the corner of Church Avenue/Zola Street as the measurement point to calculate the distance between Hebrew Academy-Woodmere and their home and assert that using such methodology overestimates their home’s proximity to the school by approximately 140 feet. 

Respondent’s attorney, however, states that respondent used the “corner of Church Avenue and Zola Street” as the measuring point for all students attending Hebrew Academy-Woodmere.  Using such measuring point, the district used the following methods to determine the distance from petitioners’ home to the school: (a) Transfinder (bus routing and global positioning system software); (b) Google Maps; and (c) Microsoft Bing Maps.  The Assistant Superintendent for Business and Operations submitted an affidavit and accompanying documentation indicating that using this measuring point and the methods to determine distance outlined above, the distance from Hebrew-Academy Woodmere to petitioners’ home is less than one half mile and therefore, its determination to deny petitioners’ daughter transportation is proper.   

As noted above, a district has broad discretion to determine measurement points.  Petitioners do not dispute that the measurement point was not on school property and/or that the measurement point was used inconsistently for all students attending Hebrew Academy-Woodmere.  Nor do petitioners dispute that the distance was less than one half mile using such measurement point.  Therefore, I find that petitioners have not met their burden of proving that respondent’s denial of their transportation request was arbitrary, capricious or unreasonable.

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