Decision No. 18,038
Appeal of DAVID and NICOLE TREACY, on behalf of their child, from action of the Board of Education of the Mechanicville City School District regarding transportation policy.
Decision No. 18,038
(August 24, 2021)
Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel.
ROSA., Commissioner.--Petitioners appeal the action of the Board of Education of the City School District of the City of Mechanicville in adopting a revised transportation policy. The appeal must be dismissed.
Petitioners and their child (“the student”) reside in respondent’s school district. The student attends a parochial school located outside the district’s boundaries.
At a board meeting on August 1, 2019, respondent’s Policy Committee recommended that respondent amend its transportation policy (“Policy 5730”) such that it would not require respondent to transport general education students to nonpublic and parochial schools. The Committee noted that the board was not required to provide this transportation, which cost approximately $126,000 per year. At a board meeting on September 5, 2019, respondent approved revisions to Policy 5730. As amended, the policy states, in relevant part, that “[n]on-resident students attending District schools and students attending private or parochial schools outside District boundaries  must provide their own transportation.”
By letter dated October 16, 2019, respondent’s superintendent advised petitioners that, beginning July 1, 2020, respondent would transport students only to public or nonpublic schools within the district’s boundaries. This appeal ensued. Petitioners’ request for interim relief was denied.
Petitioners argue that the portions of Policy 5730 prohibiting respondent from transporting students to schools outside of the district are illegal or inequitable. Specifically, they claim that it does not treat all children equally because there are no parochial schools located in respondent’s district. Petitioners also allege that respondent failed to adhere to the Open Meetings Law in adopting revised Policy 5730. Petitioners seek an order enjoining enforcement of the disputed portion of the policy.
Respondent argues that petitioners’ claims concerning the Open Meetings Law are outside the jurisdiction of the Commissioner of Education. On the merits, respondent contends that Policy 5730 complies with Education Law § 3635 (c) and that the board has exceeded the minimum transportation requirements by offering transportation services to district residents attending public and nonpublic schools in the district.
Petitioners’ claims regarding the Open Meetings Law must be dismissed for lack of jurisdiction. Public Officers Law § 107 vests exclusive jurisdiction over alleged violations of the Open Meetings Law in the Supreme Court of the State of New York (Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of McColgan and El-Rez, 48 id. 493, Decision No. 15,928). Therefore, such allegations may not be adjudicated in an appeal pursuant to Education Law § 310, and I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.
Turning to the merits, a city school district may, but is not required to, provide transportation (Education Law § 3635  [c]). If a city school district so elects, it must do so equally for all children in like circumstances (Education Law § 3635  [c]; Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891). The Commissioner has held, for example, that children in different grades are not in “like circumstances” and that city school districts may establish transportation policies that distinguish among grade levels (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; 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 establishing the facts upon which he or she 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 failed to prove a clear legal right to their requested relief. Respondent has elected to provide transportation although it is not required to do so by statute. Having done so, its only obligation is to “treat all similarly situated individuals alike” (Vassallo v. Lando, 591 F Supp 2d 172, 183 [ED NY 2008]). Policy 5730 fulfills this obligation because respondent provides transportation equally for all children who attend school, public or nonpublic, within respondent’s district. Both courts and the Commissioner have held that students attending schools within a district and those attending schools outside of a district are not in “like circumstances” (see e.g. Matter of Brown v Allen, 23 AD2d 591 [3d Dept 1965] [a student attending school outside of the district “is not in like circumstances to a child attending a school within the district”]; O'Donnell v Antin, 81 Misc 2d 849 [Sup Ct, Westchester County 1974], affd 36 NY2d 941 , appeal dismissed 423 US 919 ; Appeal of W.H., 49 Ed Dept Rep 227, Decision No. 16,009; Appeal of Welka, 36 id. 158, Decision No. 13,688; Matter of Hackmyer, 15 id. 74, Decision No. 9,081; cf. Matter of Sands Point Academy & Country Day Sch. v Bd. of Ed. of City of N.Y., 63 Misc 2d 276, 277 [Sup Ct, Kings County 1970] [city school district’s five-mile limitation on transportation upheld]).
Petitioners nevertheless argue that two factual circumstances compel a different result here: (1) there are currently no parochial schools within respondent’s district; and (2) there is no public transportation within the City of Mechanicville. While I am sympathetic to these circumstances, they are not attributable to respondent’s amended Policy 5730. Respondent has the statutory discretion to offer no transportation whatsoever; if it so elected, petitioner would experience the same challenges concerning the lack of parochial schools and public transportation. Thus, petitioner’s allegations actually pertain to the discretion afforded a city school district such as respondent under Education Law § 3635 (1) (c). This discretion is not conditioned upon the availability of a certain number of nonpublic schools or the availability of public transportation. Therefore, any argument in this respect challenges the plain language of Education Law § 3635 (1) (c), a statute which I have no authority to disregard.
With specific respect to petitioners’ allegation regarding the unavailability of public transportation, I note that Supreme Court, Westchester County rejected a materially indistinguishable argument in O’Donnell v Antin. In that case, the plaintiffs demonstrated that public transportation was “not geared to the needs of students”; “wholly inadequate as a substitute for school bussing”; and presented a “danger[ous] and futil[e]” option for their children. While this “proof ... demonstrate[d] a case for legislative and political remedial action,” the court did not find that it demonstrated the invalidity of the portion of Education Law § 3635 governing city school district transportation (O'Donnell, 81 Misc 2d at 853).
In light of this decision, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 Petitioners only challenge the portion of this policy concerning district residents who attend nonpublic schools located outside the district. Respondent’s policies concerning the transportation of students with disabilities are not at issue.
 Respondent also argues that petitioners’ claim was unripe because revised Policy 5730 did not go into effect until July 1, 2020. However, these revisions took effect while this appeal was pending. As such, I decline to dismiss the appeal on this basis.
 I do not find, as petitioners suggest, that O’Donnell is distinguishable in that the city in that case offered some degree of public transportation.