Appeal of ISABEL NEMAN, on behalf of her child, from action of the Board of Education of the Great Neck Union Free School District regarding transportation.

Decision No. 18,563

(May 8, 2025)

Ingerman Smith LLP, attorneys for respondent, Sophia R. Terrassi, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) to deny her child (the “student”) transportation to Bnot Yaakov (the “nonpublic school”) for the 2024-2025 school year.  The appeal must be dismissed.

Petitioner and the student reside within respondent’s district.  Pursuant to board policy, respondent provides transportation to students in kindergarten through fifth grade who live one-half mile or more from the school they attend.  On or about October 1, 2024, petitioner requested afternoon transportation from the nonpublic school for the 2024-2025 school year.  Respondent denied this request as the distance between petitioner’s residence and the school is 0.156 miles.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 2, 2024.

Petitioner does not contest respondent’s distance calculation but argues that the denial of her request will cause hardship for her family.  Petitioner also argues that transportation would impose a minimal hardship as several buses pass her home.

Respondent argues that petitioner is ineligible for transportation according to statute and district policy.    

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).

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).  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).

As indicated above, petitioner is ineligible for transportation due to the distance between her home and the school.  While I am sympathetic to petitioner’s reasons for desiring transportation, “the legislative yardstick is distance, which is, objectively [and] readily ascertainable ...” (Studley v. Allen, 24 AD2d 678 [3d Dept 1965]).  Thus, respondent’s decision to enforce the distance limitations in its policy cannot be considered arbitrary or capricious (see Appeal of Lachman, 56 Ed Dept Rep, Decision No. 17,039; Appeal of Robert G., 32 id. 60, Decision No. 12,758).  Additionally, to the extent respondent provided gratuitous transportation during prior school years, a district has no authority to make an exception to the eligibility requirements of Education Law § 3635 merely because it erroneously provided transportation in the past (Appeal of Molignano and Koehler, 64 Ed Dept Rep, Decision No. 18,450; Appeal of Lachman, 56 id., Decision No. 17,039; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073).[1]

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

THE APPEAL IS DISMISSED.

END OF FILE