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Decision No. 17,863

Appeal of YOSSEF COHEN and LEAH COHEN, on behalf of HIRSCH COHEN and CHANA COHEN, from action of the Board of Education of the Rush-Henrietta Central School District regarding transportation.

Decision No. 17, 863

(July 1, 2020)

The Legal Aid Society of Rochester, New York, attorneys for petitioner, Jonathan Falk, Esq., of counsel

DesMarteau & Beale, attorneys for respondent, George DesMarteau, Esq., of counsel

Tahoe., Interim Commissioner.--Petitioners appeal the denial of their request for afternoon transportation for their children from a nonpublic school by the Board of Education of the Rush-Henrietta Central School District (“respondent”).  The appeal must be dismissed.

During the 2018-2019 school year, petitioners’ oldest child entered kindergarten and began attending Derech HaTorah, a nonpublic school located within 15 miles of petitioners’ residence.  Respondent provided morning transportation from the student’s residence to the nonpublic school.  For the afternoon, respondent enlisted the help of a neighboring district which “transport[ed] the student from the school to its central administration building for parent pick-up.”  During the 2019-2020 school year, petitioners’ oldest child attended first grade at Derech HaTorah, and their youngest child began kindergarten there.   

The record reflects that Derech HaTorah’s school day ends at 3:45 p.m. Mondays through Thursday and at 1:30 p.m. on Fridays, while the school day for respondent’s primary schools ends at 2:00 p.m.  Respondent’s policy for transporting students to nonpublic schools is set forth in Policy 8413, which states, “[t]he Board of Education shall provide transportation for all non-public school resident students in grades kindergarten through 12 to the school they legally attend under the same conditions which entitle public school students to be transported to public schools in the district.”

Petitioners submitted a timely request to respondent for transportation of their children to and from Derech HaTorah for the 2019-2020 year.  Respondent granted petitioners’ request with respect to morning transportation but denied it with respect to afternoon transportation.  Petitioners appealed this determination to respondent, which, by letter of August 14, 2019, denied their appeal.  This appeal ensued.  Petitioners’ request for interim relief was denied on September 3, 2019.

Petitioners contend that respondent’s denial of afternoon transportation from Derech HaTorah was arbitrary and capricious.  Petitioners assert that the district provides transportation to “multitudinous other nonpublic schools at similar distances with similar school dismissal times.”  Further, petitioners argue that respondent’s refusal to provide full transportation for their children to Derech HaTorah was “discriminatory,” claiming that respondent provided morning and afternoon transportation to 15 Catholic schools and five “specifically Christian schools” for the 2018-2019 school year.  Petitioners seek a determination that respondent provide the students transportation to Derech HaTorah in the mornings and afternoons during the 2019-2020 school year.

Respondent contends that its determination comported with Policy 8413 and “longstanding practice.”  Respondent asserts it denied the students afternoon transportation because the afternoon dismissal time of their nonpublic school was “so far misaligned with that of respondent’s [primary] schools ... as to constitute an unreasonable burden.” 

First, I must address two procedural matters.  Petitioners submitted a reply in this 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

Additionally, petitioners have submitted a memorandum of law containing new factual assertions.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799).  Therefore, while I have considered the memorandum of law, I have not considered those portions raising new assertions.

Turning to the merits, the Education Law does not require a board of education to transport resident children attending nonpublic school in all circumstances.  Authorities at public and nonpublic schools are obligated to cooperate in a reasonable manner in the scheduling of classes and transportation (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of Salvia, 36 id. 365, Decision No. 13,750; Appeal of Frasier, 35 id. 499, Decision No. 13,612).  Public school authorities may not dictate the opening or closing hours for a nonpublic school, but the adoption of unreasonable or erratic schedules relieves public school authorities of the responsibility for arranging to meet those schedules.  Even if students may be required to remain for academic courses, public school authorities are not required to provide transportation arrangements beyond what is reasonable (Appeal of Reilly, 46 Ed Dept Rep 184, Decision No. 15,479; Appeal of Salvia, 36 id. 365, Decision No. 13,750; Matter of Berger, 22 id. 443, Decision No. 11,028).

In determining reasonableness, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of Donn, 49 Ed Dept Rep 187, Decision No. 15,994; Appeal of Reilly, 46 id. 184, Decision No. 15,479; Appeal of Del Prete, 40 id. 148, Decision No. 14,444).  Although a board of education may not be influenced by economic considerations to the point of failing to provide transportation which is reasonable (Appeal of Frasier, 35 Ed Dept Rep 499, Decision No. 13,612), considerations of economy cannot be ignored (Appeal of Donn, 49 Ed Dept Rep 187, Decision No. 15,994; Appeal of Post, 33 id. 151, Decision No. 13,006; Appeal of Stickley, 27 id. 328. Decision No. 11,963).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioners have not met their burden of proving a clear legal right to transportation to and from Derech HaTorah.  Petitioners admit that, on Mondays through Thursday, the departure time for Derech HaTorah is 3:45 p.m., an hour and 45 minutes later than the dismissal time for respondent’s primary schools.  This is a substantial discrepancy, and petitioners have not met their burden of proving that respondent provides transportation to similarly-situated nonpublic schools.  While petitioners state that “respondent fully buses students to multitudinous other nonpublic schools at similar distances with similar school dismissal times,” they have produced no evidence of this assertion.  Respondent further explains that the provision of transportation to petitioners’ children would require an additional, two-hour bus run that would cost approximately $15,654 annually.

Petitioners do not make a separate argument as to why Derech HaTorah’s closing time of 1:30 p.m. on Fridays is reasonable.  However, I note that prior decisions of the Commissioner have rejected requests of a similar length to accommodate particularized or individualized demands where transportation could not otherwise be reasonably provided (see Appeal of Salvia, 36 Ed Dept Rep 365, Decision No. 13,750 [parent’s request for transportation at 5:30 p.m. instead of 5:00 p.m. not reasonable where, although nonpublic school required its students to participate in sports until 5:30 p.m., there was no explanation in the record as to why physical education could not “be given during the normal school day”]; Appeal of Willer, 35 id. 389, Decision No. 13,580 [parent’s request for transportation at 3:00 instead of 2:30 not reasonable where instruction at the nonpublic school ended at 2:30 and tutoring occurred from 2:30-3:00]; Appeal of Donn, 49 Ed Dept Rep 187, Decision No. 15,994 [parent’s request for transportation to a nonpublic school held unreasonable where school district’s buses only ran until 4:30 p.m. and the parent requested transportation to a nonpublic school at 5:00 p.m.]).  Therefore, on this record, I cannot find that respondent’s determination to decline afternoon transportation from Derech HaTorah was arbitrary or capricious.

Petitioners argue that Appeal of Frasier (35 Ed Dept Rep 499, Decision No. 13,612) supports their request for relief.  In Frasier, the Commissioner held that a school district was required to provide transportation where it could do so with a “slight modification” to its transportation schedule — i.e., having its late bus wait an extra 30 minutes at the district’s middle school.  The Commissioner also found the nonpublic school’s afternoon dismissal time, which was 30 minutes later than that of the public school district, to be reasonable under the circumstances.  Frasier is distinguishable from the instant appeal as respondent here would have to create a two-hour bus run (that would entail additional costs) and there is no evidence that respondent currently provides transportation for students at any similarly situated nonpublic school.  The fact that Frasier involved a 30-minute disparity in dismissal times is not dispositive; as the Commissioner subsequently clarified, “Frasier does not stand for the proposition that a nonpublic school dismissal time a half hour later than the public school dismissal time or the last scheduled late bus is per se reasonable” (Appeal of Donn, 49 Ed Dept Rep 187, Decision No. 15,994).[1]

Petitioners also contend that respondent improperly denied their request based upon grade-level distinctions, and that the Commissioner only permits city school districts to offer “limited” transportation “for certain grade levels and not others.”  However, there is no evidence that respondent denied petitioners’ request based upon the students’ grade levels.  Therefore, I need not consider petitioners’ argument, which is hypothetical under the circumstances.

Petitioners also allege that respondent’s determination was based on, or amounts to, religious discrimination because Derech HaTorah is a Jewish school.  However, petitioners’ allegations are conclusory in nature and the record is devoid of any support for this allegation (see Appeal of Visconti, 57 Ed Dept Rep, Decision No. 17,366).

Finally, petitioners’ claim for money damages must be dismissed for lack of jurisdiction.  Petitioners request that, in the alternative, they seek “monetary compensation to arrange for a safe and secure third-party carrier ....”  The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Application of Kolbmann, 48 id. 370, Decision No. 15,888). 

In light of this determination, I need not address the parties’ remaining arguments.




[1] Appeal of a Student with a Disability (55 Ed Dept Rep, Decision No. 16,858) does not have any precedential value as the Commissioner dismissed that appeal as moot.