Decision No. 12,829

(November 4, 1992)

Stephen W. Herrick, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from a decision of the Board of Education of the City School District of the City of Albany ("respondent") to provide transportation to school for his daughter via public, rather than a private, carrier. The appeal must be dismissed.

Respondent's policy is to provide transportation between home and the school of attendance for students who reside more than 1.5 miles away. Pursuant to a policy to alleviate racial imbalance in its schools, respondent transports eligible students attending a magnet school (grades K and 1) and students attending an open enrollment program (grades K-3) via private bus. All other eligible students are provided passes for transportation on public transit facilities.

Respondent transports petitioner's daughter, who is a kindergarten student enrolled in neither a magnet school nor an open enrollment program, by supplying a bus pass for public transportation. This method requires petitioner's daughter to ride a public bus and cross a city street to transfer to a second public bus. Petitioner maintains that this violates Education Law '3635, as well as the Federal and State Constitutions.

Pursuant to Education Law '3635, a board of education of a city school district is not required to provide transportation between home and school. Such a board may, in its discretion, provide such transportation, provided that all children in like circumstances are treated similarly (Education Law '3635[1]). Petitioner maintains that by not transporting his daughter via a private bus, as it does for magnet school and open enrollment students, respondent is not providing equal transportation to all children similarly situated in violation of Education Law '3635(1). He further maintains that his daughter is being discriminated against on the basis of race, in violation of the Federal and State Constitutions. I reject petitioner's contentions.

Students who are transported to alleviate racial imbalance are not "in like circumstances" to petitioner's daughter (Hatch, et al. v. Bd. of Ed., Ithaca City S.D., 81 AD2d 717; Matter of Roth, 12 Ed Dept Rep 161; Matter of Gallo and Rappleyea, 10 id. 219). Accordingly, there is no requirement that respondent transport petitioner's daughter in the same manner as magnet school and open enrollment students. Nor is there any basis to conclude that respondent's transportation policy to alleviate racial imbalance violates the Education Law.

Regarding petitioner's contention that his daughter is the victim of racial discrimination, the record reveals that respondent provides transportation to its magnet schools and open enrollment program regardless of ethnic or racial background. Consequently, there is no evidence that respondent's policy is constitutionally defective.

Petitioner also seems to contend that the method of transportation provided his daughter is unreasonable and dangerous because it requires her to cross a city street and transfer to another bus. However, a board of education has broad discretion in determining the manner in which 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 a transfer from one public transit facility to another is required is 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 is dangerous, while I appreciate petitioner's concerns over the safety of his daughter, there is always some measure of danger for children who must walk any distance to or 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. Moreover, 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 to 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 his daughter is required to travel.

The record before me does not show that respondent has abused its discretion in the manner in which transportation is provided for petitioner's daughter.

THE APPEAL IS DISMISSED.

END OF FILE

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