Appeal of LILIYA BABAYAN, on behalf of her child, from action of the Board of Education of the Roxbury Central School District regarding transportation.

Appeal of IRYNA GOLDIN, on behalf of her child, from action of the Board of Education of the Roxbury Central School District regarding transportation.

Decision No. 18,661

(December 15, 2025)

Ferrara Fiorenza PC, attorneys for respondent, Lindsay A.G. Plantholt, Esq., of counsel

ROSA., Commissioner.--In two separate appeals, petitioners challenge determinations of the Board of Education of the Roxbury Central School District (“respondent”) denying their children transportation to Bovina Center Montessori School (the “nonpublic school”).  Because the appeals present common questions of fact and law, they are consolidated for decision (8 NYCRR 275.18).  The appeals must be dismissed.

On or about March 20, 2025, petitioners requested transportation on behalf of their children to the nonpublic school.  Respondent denied these requests, as the distance between the nonpublic school and petitioners’ homes exceeds 15 miles.  These appeals ensued.

Petitioners request that respondent provide transportation as the route includes conditions such as “mountainous terrain” and “dense fog.”  Petitioner Goldin additionally argues that the distance between her home and the nonpublic school is less than 15 miles if measured in a straight line.  For relief, petitioners request transportation or establishment of a centralized pickup point for the 2025-2026 school year

Respondent contends, among other procedural defenses, that the appeals must be dismissed for improper service.  On the merits, respondent contends that it has no obligation to provide transportation under the circumstances.

The appeals must be dismissed for improper 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).

Petitioners’ affidavits of service reflect that the petition was sent by U.S. mail.  “[S]ervice by U.S. mail does not constitute valid service of a petition pursuant to Education Law § 310” (Appeal of Gardner, 64 Ed Dept Rep, Decision No. 18,429; Appeal of Y.F., 62 id., Decision No. 18,298; Appeal of Musso, et al., 60 id., Decision No. 17,936).  Petitioners did not submit replies or otherwise respond to this defense.[1]  Therefore, the appeals must be dismissed for lack of personal service.

Even if the appeals were properly served, they would be dismissed on 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).

Education Law § 3635 (1) (b) (ii) further states that a board of education “may, at its discretion,” provide transportation from a centralized pick-up point for a child residing within the district to a nonpublic school located more than 15 miles from the child’s home, provided that the district has provided transportation to such nonpublic school in at least one of the immediately preceding three school years (Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of S.T., 48 id. 389, Decision No. 15,894; Appeal of Hughes, 48 id. 299, Decision No. 15,865).  If a school district exercises its discretion to provide such transportation, the distance from the centralized pick-up point to the nonpublic school must not exceed 15 miles (Education Law § 3635 [1] [b] [ii]; Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of Bittlingmaier, 45 id. 213, Decision No. 15,305; Appeal of Turner, 40 id. 156, Decision No. 14,447).

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).

Petitioners’ principal argument is that they should receive transportation due to the hazardous path between their homes and the nonpublic school.  As I previously stated in Appeal of Famolari, “courts have rejected such arguments … [as] Education Law § 3635 does not impose upon school districts any obligation to consider the relative hazards in the paths of different children” (60 Ed Dept Rep, Decision No. 17,987 [internal quotations omitted]).  “[T]he legislative yardstick is distance which is, objectively, readily ascertainable, and not hazard which involves a myriad of factors” (id. [internal quotations omitted]).  Thus, I have no discretion to disregard the 15-mile limitation contained in Education Law § 3635.

Additionally, the requested transportation would, according to respondent’s transportation supervisor, “require significant … resources and an approximately 80[-]minute round trip twice each day.”  As such, it cannot be provided “at no additional cost to the district” (e.g. Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,295). 

Finally, respondent was not obligated to establish a centralized pick-up point for the 2025-2026 school year because it was not providing regular home-to-school transportation to and from the nonpublic school (see e.g. Appeal of Domond, 64 Ed Dept Rep, Decision No. 18,553 and appeals cited therein). While boards “may” establish such pickup points if they have provided transportation to a nonpublic school “in at least one of the immediately preceding three school years,” respondent has never transported a student to the nonpublic school (Education Law § 3635 [1] [b] [ii]).

I have considered petitioners’ remaining contentions and find them to be without merit.[2]

THE APPEALS ARE DISMISSED.

END OF FILE