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Decision No. 17,303

Appeal of GUSTAVO MATLIS, on behalf of his son MARC, from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding transportation.

Decision No. 17,303

(January 4, 2018)

Ingerman Smith, LLP, attorneys for respondent, David F. Kwee, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”) to deny his son (“the student”), transportation to a nonpublic school during the 2017-2018 school year.  The appeal must be dismissed.

At the time this appeal was commenced, during the 2017-2018 school year, petitioner and his son resided within respondent’s district and the student attended seventh grade at the Hebrew Academy of Long Beach Elementary School (“HALB”), a nonpublic school.  Pursuant to respondent’s transportation policy and Administrative Regulation §8410, free transportation is provided to students in grades six through eight who live one mile or more from the school they attend.

In August 2017, petitioner requested transportation for his son for the 2017-2018 school year during a meeting with respondent’s business administrator.  By letter dated August 29,[1] the business administrator denied petitioner’s request “based upon the distance.”  The letter stated that distance from a designated point at the school to petitioner’s home was calculated using a “specially calibrated odometer” and measured 0.98 miles.   By letter dated September 5, 2017, petitioner wrote to the business administrator requesting additional information so he could appeal to the Commissioner and requested that the denial of his son’s transportation be “re evaluated [sic].”  By letter dated September 18, 2017, the business administrator confirmed that “a calibrated measurement determined the distance from [petitioner’s] home to HALB was 0.98 miles.”  This appeal ensued.

Petitioner argues that respondent adopted a very narrow and limiting interpretation of the New York State Education Department transportation guidelines and that:

[T]he spirit of the law did not intend measurements to be so limiting, but rather an approximation to decide if the student resides in the general area covered by the allowable distance.

Respondent argues that the appeal should be dismissed because petitioner has failed to state a claim upon which relief can be granted and that he has failed to meet his burden of proof.  Respondent asserts that its distance measurement is accurate, reasonable and consistent with the district’s administrative regulations and polices and that the challenged decision was not arbitrary, capricious or unreasonable.  Respondent requests reimbursement for the costs and expense of defending this proceeding.  Finally, respondent objects to petitioner’s reply on the grounds that it is untimely.

First, I will address a procedural matter.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710). 

In this case, the affidavit of service submitted by respondent indicates that the answer was served on petitioner by United Parcel Service on September 27, 2017, for overnight delivery.  The affidavit of service submitted by petitioner indicates that the reply documents were served by regular mail on October 10, 2017.  Because the answer was not served by mail, but was served by private express delivery service for overnight delivery, the date of receipt would be September 28, 2017 (Appeal of M.C., 55 Ed Dept Rep, Decision No. 16,850).  Therefore, petitioner’s reply documents are untimely and I have not considered them.

The appeal must be dismissed on the merits.  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).

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).

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).

Respondent states that initial determinations on the distance between a student’s home and school are done by the district’s transportation office which uses school bus routing software known as Transfinder.  An affidavit from the business administrator states that, according to Transfinder, petitioner resides 0.98 miles from HALB. The affidavit further states that any measurements that are disputed are measured using a vehicle owned by the district that is equipped with a specially calibrated odometer and that every school district measurement is taken by the same specially calibrated odometer.  Pursuant to respondent’s Administrative Regulation §8410 “distances are measured from a point of the curb opposite the front door of the child’s dwelling to one designated point at the curb at each school.”  The business administrator states that he measured the distance between petitioner’s home and HALB using the above described procedure, and that the distance measured 0.98 miles. 

Petitioner has failed to establish that the school district’s methods are improper or unlawful.  Other than petitioner’s conclusory allegations that the school district illegally modified State law, petitioner submits no proof to support his claims.  Establishing transportation routes and measuring distances is within the discretion of a board of education, and the Commissioner will not set aside such actions unless it appears that he 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 Sanguine, et al., 48 id. 179, Decision No. 15,830).  While the petition is not entirely clear, petitioner appears to allege that respondent is being too exact when calculating distance.  Petitioner argues that “not too much effort should be taken in measuring, or that the measurements should not be as accurate as a ‘professional survey’...” and objects to the use of respondent’s measuring to the second decimal place and to measuring the distance “to specific points (front door).”  However, the Commissioner has upheld determinations using a calibrated odometer (Appeal of Adamitis, 38 Ed Dept Rep 765, Decision No. 14,137; Appeal of DiMartino, 38 id. 762, Decision No. 14,136; Appeal of Taylor, 26 id. 228, Decision No. 11,737). 

I must also dismiss petitioner’s challenge to the school district’s method of measuring distance using the curb opposite the front door of the resident’s dwelling. A school board 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).  On this record, petitioner has not established any facts demonstrating that respondent has been arbitrary or capricious or unreasonable in measuring the distance between his residence and HALB or that respondent has not applied its transportation policy in a fair and consistent manner.

With respect to respondent’s request for costs to defend this appeal, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).

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




[1] The letter is dated August 29, 2018, which appears to be a typographical error.