Decision No. 13,363

(February 21, 1995)

Alan T. Nicolette, Esq., attorney for petitioner

Blumberg & Carrig, Esqs., attorneys for respondent, Bart M. Carrig, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's refusal to transport his daughter, Sarah, to a nonpublic school in Utica. The appeal must be dismissed.

Petitioner resides in the city of Little Falls. In March 1994, petitioner applied for bus transportation for Sarah to attend a nonpublic school located in the city of Utica. The nonpublic school is approximately 22 miles from petitioner's home. On August 17, 1994, respondent board voted unanimously to deny petitioner's request for transportation.

Petitioner claims that respondent is providing transportation for a learning-disabled student to the nonpublic school on a daily basis during the 1994-1995 school year. Petitioner further alleges that transportation could be provided on the same bus for Sarah at no additional expense to the district.

Respondent claims that its denial of transportation was proper. It asserts that because it is a city school district as defined in Education Law '2(16), it is not required to provide transportation to students in regular education programs pursuant to Education Law '3635(1)(c).

As a city school district, respondent has no obligation to provide transportation for non-disabled students residing within the school district (Education Law '3635[1][c]; Appeal of Horst, 33 Ed Dept Rep 71; Appeal of Cassin, 32 id. 373, 376; Appeal of Dandreano, Jr., 28 id. 109). However, if a city school district elects to provide transportation to such students, such transportation must be offered equally to all students in like circumstances (Education Law '3635[1][c]).

Petitioner bases his claim entirely on the fact that respondent transports a learning-disabled student to a nonpublic school outside the district, pursuant to the requirements of Article 89 of the Education Law. However, students with disabilities, who are provided transportation pursuant to Article 89 of the Education Law, are not in "like circumstances" with students in regular education programs (Matter of Keene, 19 Ed Dept Rep 547 at 550; Matter of Law, 12 id. 224 at 228; Matter of Simon, 7 id. 12; Matter of Shedler, 5 id. 47). Petitioner has neither alleged nor proven that respondent provides transportation for any non-disabled students. I also note that, contrary to petitioner's assertion, the record reveals that granting petitioner's request would result in substantial additional cost to respondent. Accordingly, petitioner's claim that Sarah is entitled to the requested transportation because transportation is provided to a student with a disability is rejected.

Under the facts set forth in the record, petitioner has advanced no legal basis on which respondent would be required to provide transportation. I have considered petitioner's remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

END OF FILE

---