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Decision No. 17,936

Appeal of JOSEPH MUSSO, JOSEPHINE GIUSEPPA MUSSO, LISA FIERO, CHRISTIN WAYRICH, CHRISTOPHER WAYRICH, ERIN KELLY, JOHN KELLY, and JOSEPHINE MARINI, on behalf of their children, from action of the Board of Education of the Jericho Union Free  School District regarding transportation.

Decision No. 17,936

(November 2, 2020)

Ingerman Smith, LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ROSA., Interim Commissioner.--Petitioners appeal the decision of the Board of Education of the Jericho Union Free School District (“respondent”) to deny late bus transportation for their children.  The appeal must be dismissed.

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  Briefly, petitioners’ children attend five different nonpublic schools located outside of respondent’s district.  In 2019, petitioners requested that respondent provide late bus transportation from each of these nonpublic schools to the students’ homes.  Although not entirely clear from the record, it appears that petitioners requested such transportation so that their children could participate in extracurricular activities.  Respondent considered these requests at a board meeting on September 17, 2019.  Respondent denied petitioners’ requests by separate letters dated September 19, 2019.  This appeal ensued.

Petitioners argue that the district provides “two additional choices of transportation in the afternoon” that are not available to students attending nonpublic schools.  Petitioners further claim that respondent has engaged in religious discrimination because their children each attend Roman Catholic institutions.  Petitioners additionally contend that respondent has sufficient funds to provide the requested transportation.  Petitioners request a review of respondent’s budget to determine if funds are available to provide late transportation to petitioners’ children.  Petitioners also allege that, following their requests for transportation, respondent retaliated against them by removing previously approved late transportation.

Respondent contends that the appeal must be dismissed for lack of personal service.  On the merits, respondent argues that its policy regarding late transportation for nonpublic school students is reasonable and that none of the students’ circumstances justified the establishment of a new bus route.

The appeal must be dismissed for lack of personal service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Petitioner initially submitted a copy of the petition in this matter to my Office of Counsel, which received it on October 21, 2019.  In a letter dated October 22, 2019, my Office of Counsel returned this submission because it did not include an affidavit of personal service or the notice required by 8 NYCRR §275.11.  Petitioner thereafter submitted the instant petition, which indicates, in an affidavit of service, that the petition was served upon “the State Education Department” via U.S. mail.  Respondent asserts that it was never served with a copy of the petition at any time.  Petitioner did not submit a reply or otherwise respond to this assertion.  Under the circumstances, I am constrained to dismiss the appeal for lack of personal service (Appeal of Peppaceno, 55 Ed Dept Rep, Decision No. 16,807; Appeal of Khan, 51 id., Decision No. 16,287; Appeal of McCarthy, 50 id., Decision No. 16,208; Appeal of Villanueva, 49 id. 54, Decision No. 15,956).  Moreover, even assuming, arguendo, that petitioners served respondent by U.S. mail, service by U.S. mail does not constitute valid service of a petition pursuant to Education Law §310 (see e.g. Appeal of L.L., 54 Ed Dept Rep, Decision No. 16,670; Applications of Balen, 40 id. 250, Decision No. 14,474; Appeal of K.R., 40 id. 189, Decision No. 14,457).

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