Decision No. 18,507
Appeal of MELISSA ANN MCGRADY, on behalf of her child, from action of the Board of Education of the Delaware Academy Central School District at Delhi regarding transportation.
Decision No. 18,507
(October 7, 2024)
Ferrara Fiorenza PC, attorneys for respondent, Wendy K. DeWind, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Delaware Academy Central School District at Delhi (“respondent”) denying her child (the “student”) transportation to a nonpublic school for the 2024-2025 school year. The appeal must be dismissed.
Petitioner and the student reside in respondent’s district. By letter dated February 21, 2024, petitioner requested transportation for the student to a nonpublic school for the 2024-2025 school year. By letter dated May 31, 2024, respondent denied petitioner’s request for transportation because the distance from petitioner’s home to the nonpublic school exceeded 15 miles. This appeal ensued. Petitioner’s request for interim relief was denied on July 9, 2024.
Petitioner argues the student is entitled to the requested transportation because online mapping software has identified routes to the nonpublic school that are 15 or fewer miles.
Respondent argues that this appeal must be dismissed, among other reasons, because the petition was improperly verified. Respondent also maintains that it properly denied petitioner’s request for transportation.
Initially, with respect to verification, section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified. A petition “shall be verified by the oath of at least one of the petitioners” (8 NYCRR 275.5; Appeal of Booker, 40 Ed Dep Rep 447, Decision No. 14,523). When a petition is not properly verified, the appeal must be dismissed (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of D.P., 46 id. 516, Decision No. 15,580). While respondent contends that the petition it received was unverified, the copy of the petition submitted to my Office of Counsel contains the required verification, which attests to the truth of its allegations. A defect in the verification of the copy of a pleading served upon a party is insufficient to bar filing of a pleading, provided that the original pleading submitted to the Department for filing includes a proper verification (Appeal of R.E. and J.E., 58 Ed Dept Rep, Decision No. 17,438; Appeal of K.M. and T.M., 56 id., Decision No. 17,095). Accordingly, I decline to dismiss the appeal for lack of verification.[1]
Turning to the merits, pursuant to Education Law § 3635 (1), a school district must provide transportation to children who reside within the district and attend nonpublic schools, provided that the distance between the child’s home and his or her nonpublic school is within the statutorily prescribed limits (Education Law § 3635 [1] [a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of S.T., 48 id. 389, Decision No. 15,894; Appeal of Hughes, 48 id. 299, Decision No. 15,865). Specifically, a board must provide transportation for all children attending kindergarten through grade 8 whose home and school are between 2 and 15 miles apart, as well as all children attending grades 9 through 12 whose home and school are between 3 and 15 miles apart (Education Law § 3635 [1] [a]). A school district may provide transportation for a lesser or greater distance only upon approval by the voters of the district (Education Law § 3635 [1] [a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of Bittlingmaier, 45 id. 213, Decision No. 15,305; Appeal of Heffernan, 43 id. 447, Decision No. 15,046).
A school district has broad discretion to select the points from which to measure distances to determine eligibility for transportation (Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of Welch, 48 id. 176, Decision No. 15,829). A district may measure transportation distances from any part of a child’s school or residence, so long as it does so fairly and consistently (Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of Welch, 48 id. 176, Decision No. 15,829; Appeal of Flemming, 43 id. 391, Decision No. 15,028). A board of education need not expend an unreasonable amount of time, effort, or money measuring distances to determine eligibility for transportation (Appeal of Chaim and Mintz, 57 Ed Dept Rep, Decision No. 17,257; Appeal of Welch, 48 id. 176, Decision No. 15,829; Appeal of Schwab, 47 id. 73, Decision No. 15,630).
The Commissioner will uphold a district’s transportation determination unless it is arbitrary or capricious (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).
Petitioner submits evidence that an internet-based mapping application, Google Maps, measures the distance from the end of her road[2] to the parking lot of the nonpublic school as 14.9 miles and the distance from the end of her road to the school address as 15 miles.[3] In response, respondent submits a screen shot demonstrating that Google Maps calculated the distance between the end of petitioner’s road and the school address as 15.1 miles. While petitioner argues that respondent could have used a different measurement point for the school, she has not shown that respondent’s use of the school’s address was unfair or inconsistent with its policy (e.g., Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of Welch, 48 id. 176, Decision No. 15,829). Similarly, respondent acted within its discretion in determining that it was unsafe for its buses to travel on a specific road. The fact that a bus from a neighboring school district drives on a portion of this road does not render respondent’s decision unreasonable. Thus, on this record, petitioner has not proven that respondent’s determination was arbitrary or capricious (Appeal of A.H., 64 Ed Dept Rep, Decision No. 18,439; Appeals of Manders, 62 id., Decision No. 18,295; Appeal of Juguet, 59 id., Decision No. 17,706).[4]
THE APPEAL IS DISMISSED.
END OF FILE
[1] I also decline to dismiss the appeal for improper service. Respondent has not rebutted petitioner’s claim that the high school principal represented that she could accept service on behalf of the superintendent (8 NYCRR 275.8 [a]; Appeal of S.V., 61 Ed Dept Rep, Decision No. 18,097).
[2] The parties appear to agree that the correct measuring point for petitioner’s residence is the nearest pickup point, as she resides on a private road (see Appeal of Freeman, 60 Ed Dept Rep, Decision No. 17,980 [“while a school district is not obligated to provide transportation over private thoroughfares, it is not legally precluded from doing so”]).
[3] Petitioner’s 15-mile route necessitates taking a road which respondent argues is unsafe for school buses.
[4] It appears that respondent’s standard practice is to utilize Google Maps, which the Commissioner has previously upheld as reasonable (Appeal of Ruggiero, 59 Ed Dept Rep, Decision No. 17,837). If not, respondent must “ensure that [it] utilize[s] a standard procedure for measuring distance” (Appeal of Leslie, 63 Ed Dept Rep, Decision No. 18,355; Appeal of Manders, 62 id., Decision No. 18,295).