Decision No. 12,650

(February 6, 1992)

Raymond G. Kuntz, P.C., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from respondent's denial of his request for transportation of his son between his home and the nonpublic school which his son attends. Respondent denied such request because the distance between petitioner's residence and the nonpublic school is greater than 15 miles, and the voters of the district have not approved transportation beyond such distance. The appeal must be dismissed.

Petitioner's son attends the Harvey School, a nonpublic school. It appears that the Harvey School has two driveways from which access to the school may be obtained. Petitioner alleges that respondent has measured between petitioner's home and the driveway farthest from his home, to determine whether petitioner is within the 15 mile distance limitation set forth in Education Law '3635(1)(a). That section requires school districts to provide transportation to students residing in such district, provided the student resides within 15 miles of the nonpublic school in question, as measured by the nearest available route from home to school. Petitioner disputes respondent's claim that the mileage to the nearer driveway is also beyond the 15 mile limitation. Petitioner requests that I direct respondent to use the nearer driveway at the Harvey School to measure the distance between home and school. Petitioner further requests that I direct respondent to make a new measurement between these two points, and, should it measure 15 miles or less, require respondent to provide transportation for his son.

Respondent denies that it has used the farther driveway in measuring the distance and alleges that the district's procedure for measuring eligibility for transportation to nonpublic schools is to measure the nearest available route from the driveway of the home to the driveway of the school building attended. Respondent asserts that it has made a second measurement which confirms that petitioner's driveway is more than 15 miles from either driveway at the Harvey School. Respondent also contends that the appeal is untimely and that the appeal should be dismissed as moot because petitioner's son is currently receiving transportation.

An appeal to the Commissioner of Education must be instituted within 30 days from the decision complained of (8 NYCRR 275.16). It appears from the record that by letter dated April 10, 1991 respondent's supervisor of transportation notified petitioner that he resided beyond the 15 mile limit, but that transportation would be granted to petitioner's son contingent upon there being a child in the school district who is within the 15 mile limit of the Harvey School. Such grant of transportation would be made pursuant to Education Law '3635 (1)(b), which requires school districts to provide transportation between designated pickup points and a nonpublic school for students residing in the district who live too far from such school to qualify for transportation between home and school, provided that the school district is already providing transportation for students who live within a qualifying distance from such school.

In a letter dated April 12, 1990, petitioner disputed respondent's April 10 determination, contending that petitioner's own measurements indicated that he resides within the 15 mile limit. Respondent's supervisor of transportation answered in a letter dated June 7, 1991 that he had not received a copy of the April 12 letter until June 3, 1991. The supervisor indicates that he checked the mileage of the route with a school district vehicle equipped with an electronic distance measuring computer and found it to be over the 15 mile limit. The supervisor affirmed his previous decision that transportation would be granted contingent upon there being a child in the school district who is within the 15 mile limit and attends the Harvey School. In a letter to the supervisor dated June 10, 1991, petitioner disputed the route that respondent measured and requested clarification. The supervisor responded in a letter dated June 18, 1991 and again affirmed his original decision.

On June 25, 1991 the State Education Department received a letter dated June 20, 1991 from the petitioner purporting to appeal respondent's decision. On July 9, 1991, a member of my staff in the Bureau of Educational Management Services responded to petitioner's letter and included instructions on bringing an appeal. On August 20, 1991, I received a letter from petitioner indicating that he had not received a response to his June 20 letter. Petitioner now claims that he never received the July 9 response. On August 22, 1991, the Bureau of Educational Management Services sent another letter with instructions on bringing an appeal. Petitioner commenced this appeal by service of a copy of the petition on respondent on August 30, 1991.

It appears that respondent did not finally decide petitioner's transportation request until June 18, 1991. Petitioner then attempted to appeal by letter dated June 20, 1991. Since it appears that petitioner never received the July 9 response, and petitioner appealed within days of the subsequent August 22 Department response, I will excuse petitioner's failure to commence this appeal in a timely matter.

Respondent contends that the appeal is moot since petitioner's son is receiving transportation from a central pickup point pursuant to Education Law '3635(1)(b). The Commissioner will decide only matters in actual controversy and will not render a decision based upon a state of facts which no longer exists, or which subsequent events have laid to rest (Appeal of Scribani, 30 Ed Dept Rep 164). However, petitioner contends that his son is entitled to transportation from a point near his home, not from the central pickup point. Therefore, I find that the appeal is not moot.

Nevertheless, the appeal must be dismissed on the merits. The record indicates that respondent measured the distance with a school district vehicle equipped with a properly calibrated electronic distance measuring computer. Respondent also measured the route suggested by petitioner and found it was longer than respondent's proposed route. The distance was checked by respondent twice this year. In each instance, the measured route was greater than 15 miles. A board of education is not required to expend an unreasonable amount of time, effort and money in measuring distances for the purpose of determining eligibility for transportation, nor is a board of education required to make such measurements with the accuracy of a professional survey (Appeal of Taylor, 26 Ed Dept Rep 228). Petitioner has failed to establish that respondent acted in an arbitrary, capricious or unreasonable manner in determining that petitioner's son is not entitled to transportation.

THE APPEAL IS DISMISSED.

END OF FILE.

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