Appeal of C.D., on behalf of her child, from action of the Board of Education of the Blind Brook-Rye Union Free School District regarding transportation.

Decision No. 18,633

(August 27, 2025)

Guercio & Guercio LLP, attorneys for respondent, Christopher W. Shishko, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Blind Brook School District (“respondent”) that her child (the “student”) is not entitled to transportation.  The appeal must be dismissed. 

Petitioner and the student reside within respondent’s district.  Upon recommendation of respondent’s Committee on Special Education (CSE), the student has attended middle school at a neighboring school district since fall 2023.[1]  During the 2023-2024 school year, respondent offered transportation such that the student could participate in band, which meets between 2:30 and 3:10 p.m.  An academic calendar submitted by petitioner identifies this as the tenth academic period of the school day.

On August 30, 2024, petitioner received a copy of the student’s bus schedule for the 2024-2025 school year that reflected a pickup time prior to the end of tenth period.  In response to an inquiry from petitioner, respondent’s assistant superintendent for finance and facilities (“assistant superintendent”) explained that “[l]ast year [the district] w[as] able to make accommodations to allow for a later student pickup” but was unable to do so this year due to “additional students on the bus run.”  This appeal ensued. 

Petitioner contends that respondent erred by failing to provide transportation to the student following tenth period, which is part of the school day.  For relief, petitioner requests a finding that the student is entitled to transportation following the conclusion of tenth period.

Respondent contends that petitioner failed to meet her burden to establish the facts upon which she seeks relief.  Respondent further argues that it permissibly exercised its discretion to deny petitioner’s transportation request. 

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). 

School districts are not required to provide late bus transportation.  If they so elect, any policy must be applied consistently and fairly to public and nonpublic school students (Appeal of Clancy, 35 Ed Dept Rep 280, Decision No. 13,859; Matter of Cronin, 15 id. 114, Decision No. 9,101).  Additionally, districts retain the discretion to deny late bus service for one or a few students if it will result in excessive costs (Appeal of Clancy, 35 Ed Dept Rep 280, Decision No. 13,859; Matter of Berger, 22 id. 443, Decision No. 11,028; Matter of Cronin, 15 id. 114, Decision No. 9,101).

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).  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 support of her contention that band is “part of the official school day,” petitioner submits a copy of the middle school’s 2024-2025 schedule that identifies starting and ending times for ten academic periods.[2]  Respondent counters with an affidavit from the assistant superintendent in which she indicates that an employee of the school informed her that the tenth period from 2:30 to 3:10 p.m. is reserved for “extra-curricular activities [] such as band …..”  Petitioner has not otherwise provided information from an individual with firsthand knowledge of this issue.  As such, she has failed to meet her burden of proving the facts underlying her request for relief.

Given this, respondent permissibly denied petitioner’s request.  Respondent indicates that it does not offer late busing outside of its district and that the applicable transportation contract only authorizes one drop-off and pick-up time per school.  Petitioner lacks discretion to compel respondent to operate a late bus under these circumstances (Appeal of Clancy, 35 Ed Dept Rep 280, Decision No. 13,859; Matter of Cronin, 15 id. 114, Decision No. 9,101).[3]  As a result, I cannot find that respondent acted unreasonably in denying petitioner’s request (Appeal of K.R. and M.F., 64 Ed Dept Rep, Decision No. 18,547).[4]

While petitioner has not demonstrated a legal right to her requested relief, it is unfortunate that respondent could not secure transportation for the student.  As indicated above, the student is attending the out-of-district middle school per a recommendation of respondent’s CSE.  Although petitioner does not allege that band is necessary for the student to receive a free appropriate public education,[5] the record reveals that this activity is meaningful to him and contributes to his wellbeing.  I concur with the student’s psychologist, who expressed her “hope that Blind Brook and [the neighboring district’s] schools can do everything possible to facilitate [the student’s] continued involvement” in band.

THE APPEAL IS DISMISSED.

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