Decision No. 12,821

(October 14, 1992)

SOBOL, Commissioner.--Petitioner appeals from a decision of the Board of Education of the Pelham Union Free School District to provide transportation for her two sons between home and a nonpublic school by use of a public carrier, rather than a private carrier. The appeal must be dismissed.

In the spring of 1991, petitioner requested transportation for her two sons to attend a nonpublic school in the borough of Manhattan. Since petitioner resides less than 15 miles from that school, her sons are entitled to transportation services pursuant to Education Law '3635. Respondent provided the requested transportation by supplying petitioner's sons with train and subway passes. That method of transportation involved the students walking about 8/10ths of a mile to the train station, riding the train into New York City, transferring to a subway and then walking six blocks to their school.

In the fall of 1991, petitioner and her husband expressed their dissatisfaction with the transportation being provided to their sons and requested respondent to contract with a private carrier. Respondent declined to do that, citing prohibitive costs, but suggested an alternative method of transportation, i.e. an express public bus to and from school. Petitioner initially rejected that offer, but subsequently accepted the option of an express bus for the trip home.

When petitioner requested transportation for the 1992-93 school year, respondent indicated that it would provide the same transportation as it provided during the 1991-92 year. This appeal ensued.

Before reviewing the merits, it is necessary to address two procedural issues. Respondent contends that this appeal must be dismissed as untimely because it was not instituted within 30 days of the action or decision complained of, as required by '275.16 of the Regulations of the Commissioner of Education. Respondent contends that the manner in which transportation was to be provided for petitioner's sons was determined in the spring of 1991 and that since this appeal was not commenced until June 10, 1992, it is untimely. Respondent's contention is without merit. Petitioner is contesting the manner in which her sons will be transported during the 1992-93 school year. Respondent's decision on this issue was delivered to petitioner on May 16, 1992. Since this appeal was commenced within 30 days of that date, it is timely.

In its brief, respondent objects to much of the material contained in the reply submitted by petitioner. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR 275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Pronin, 27 Ed Dept Rep 203). The reply contains extensive new material which was not previously set forth in the petition and which does not respond to new material or affirmative defenses set forth in the answer. Those portions of the reply will, therefore, not be considered.

Petitioner contends that the manner of transporting her sons is arbitrary and capricious. Specifically, she maintains that the route her children take is not practical for young children because it is too long (approximately 90 minutes), requires them to walk too far and requires them to transfer between a train and a subway. While a shorter route is available, petitioner maintains that it is unsuitable because it is dangerous. Petitioner also contends that because respondent provides transportation via a private carrier for some students attending nonpublic schools, it must also do so for her children. Finally, petitioner maintains that the manner of transportation provided by respondent has resulted in a financial hardship to petitioner and her husband because they provide an escort for their sons while traveling to and from school.

In accordance with Education Law '3635, a board of education is required to provide transportation to certain students because of the distance between their homes and the schools they legally attend. However, a board of education has broad discretion in determining the manner in which such transportation will be provided. A board may provide passes for transportation on public transit facilities where transportation between home and school can be provided in that manner (Appeal of Farrauto, 27 Ed Dept Rep 149; Matter of Tomasso, 23 id. 120; Matter of Kelley, 18 id. 507; Matter of Reardon, 16 id. 441). The fact that the manner of transportation may result in a student spending approximately 90 minutes in transit is not a basis for determining that such transportation is improper (see, Appeal of Farrauto, supra; Matter of Tomasso, supra; Matter of Rouis, 20 Ed Dept Rep 493; Matter of Reardon, supra). Nor is there any basis in the record for me to conclude that the manner of transportation provided by respondent results in petitioner's sons being required to walk distances in excess of those authorized by Education Law '3635 (see, Matter of Reardon, supra). The fact that a transfer from one public transit facility to another is required is also not a basis for rejecting the transportation offered (Matter of Kelley, supra; Matter of Reardon, supra).

As to petitioner's contention that a particular means of transportation or a possible route is dangerous; while I appreciate petitioner's concerns over the safety of her sons, there is always some measure of danger for children who must walk any distance to and from school. In this instance, petitioner stresses the dangers present in an urban setting. Similar arguments could be presented for almost every child who attends school in a city environment. Similar arguments could be advanced for children in suburban or rural settings who must walk along county roads and highways, often without the protection afforded by sidewalks, traffic signals and crossing guards. Unfortunately, danger may exist regardless of the distance or location involved, and the only solution would be to provide door-to-door transportation for all students.

However, the public policy of this State does not require school districts to provide door-to-door transportation, and except in very limited circumstances that are not relevant in this case, the Education Law does not permit eligibility for transportation in individual cases to be determined on the basis of potential hazard. Transportation must be provided on the basis of distance between students' homes and the schools they attend (Matter of Studley v Allen, 24 AD2d 678). There is no obligation imposed upon school districts "to consider the relative hazards in the paths of different children" (Pratt v. Robinson, 39 NY2d 554, 559). As stated in Studley, supra at 678 "the ... yardstick is distance, which is, objectively, readily ascertainable, and not hazard which involves a myriad of factors." Accordingly, petitioner is not entitled to the transportation requested because of the allegedly hazardous route that her sons are required to travel.

I also reject petitioner's contention that respondent has not provided equal treatment for her sons because pupils attending other nonpublic schools are transported by private carriers. Respondent replies that because of the availability of public transportation options and the high cost of providing private transportation in Manhattan, respondent provides transportation of nonpublic school children into Manhattan by public transportation. However, respondent does provide private transportation if public transportation is not practicable because the student is required to transfer more than once or if due to the number of students requiring transportation to a particular school, it is more economical to provide transportation by other than public means. Since petitioner's sons are only required to transfer once and they are the only district residents attending the school in question, they are not eligible for private transportation under respondent's policy. I am satisfied with respondent's answer to petitioner's allegations of unequal treatment, and find no evidence of illegal or improper discrimination. The mere fact that some pupils are transported on private buses or in cars does not mean that all must be (Matter of Tomasso, supra; Matter of Kelley, supra).

Although petitioner and her husband may experience some personal and/or financial inconvenience because of the manner in which transportation is being provided to their sons, financial or personal inconvenience is not a basis for overturning respondent's decision in this matter (see, Appeal of Kluge, 31 Ed Dept Rep 107; Matter of Nevin, 25 id. 86; Nevin v Ambach, et al., Supreme Court, Albany County, February 28, 1986, BRADLEY, J.; Matter of Eberhardt, 25 id. 263). As stated in Matter of Kelley, supra at p. 508:

Based on the foregoing, the record before me does not show that respondent has abused its discretion in the manner in which transportation is provided for petitioner's sons.

THE APPEAL IS DISMISSED.

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