Appeal of JEFFREY SCHULER, on behalf of his son MORDECHAI, from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding transportation.

 

Decision No. 15,062  

(June 14, 2004)

 

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, Jerome H. Ehrlich, Esq., of counsel

 

MILLS, Commissioner.--Petitioner challenges the transportation provided by the Board of Education of the Hewlett-Woodmere Union Free School District ("respondent") for his son, Mordechai, for the 2003-2004 school year.  The appeal must be dismissed.

Petitioner and Mordechai, who was 15 years old at the commencement of this appeal, reside within respondent"s district.  Mordechai has attended the Rabbinical Seminary High School ("RSHS") in Queens, which is within 15 miles of petitioner"s home, since September 2002.  In the 2002-2003 school year, transportation was provided by school bus pursuant to a cooperative agreement with a neighboring school district.

Petitioner submitted a timely request for transportation for the 2003-2004 school year, which was approved in May 2003.  By letter dated July 31, 2003, respondent"s Assistant Superintendent for Business advised petitioner that Mordechai"s transportation would be provided for the 2003-2004 school year at district expense by public carriers, namely the Long Island Railroad, the Metropolitan Transit Authority subway line, and a city bus line.

Petitioner and his wife objected to the proposed arrangements.  On August 28, petitioner met with respondent"s Business Administrator, but did not obtain any change in the proposed transportation.

This appeal ensued.  Petitioner"s request for interim relief was denied on September 17, 2003.

Petitioner alleges that respondent"s change in Mordechai"s transportation violates Education Law "3635, which requires that "transportation shall be offered equally to all such children in like circumstances," since the district provides school bus transportation to other nonpublic schools.  Petitioner also argues that requiring Mordechai to use three methods of transportation violates Education Law "3623 which, he alleges, limits public transportation for students to "two single fares a day."  Petitioner further claims that respondent"s decision was untimely since he was notified less than 30 days prior to the start of the school year.

Petitioner also claims that the travel time required on public transportation is excessive "- up to one hour and 50 minutes -- and that Mordechai is required to transfer from one form of transportation to another in locations that are unsafe.  He further contends that respondent made its determination without due process or public discussion.  For relief, petitioner seeks a determination that Mordechai is entitled to transportation by school bus.

Respondent asserts that Mordechai"s transportation is consistent with the law, and maintains that its decision was based primarily on the excessive costs involved in providing a van or bus to RSHS.

A board of education has broad discretion as to the means to be used to provide transportation (Appeal of Clancy, 37 Ed Dept Rep 280, Decision No. 13,859; Appeal of DeVore, 36 id. 326, Decision No. 13,738; Appeal of Broad, 35 id. 248, Decision No. 13,530).  A board of education may provide required transportation through the use of public carriers (Appeal of Clancy, supra; Appeal of Lavin, 32 Ed Dept Rep 249, Decision No. 12,821; Appeal of Kelley, 18 id. 507, Decision No. 9,943). 

When evaluating various means of transportation, a board of education is required to consider cost (See e.g. Appeal of Clancy, supra; Appeal of Broad, supra; Appeal of Byrne, et al., 34 Ed Dept Rep 389, Decision No. 13,355).  It is the responsibility of the board of education to balance the overall efficiency and economy of a transportation system against the convenience of individual students (Appeal of Clancy, supra; Appeal of Corcoran, 36 Ed Dept Rep 324, Decision No. 13,737; Appeal of Polifka, 31 id. 61, Decision No. 12,569).  Contrary to petitioner"s allegation, the mere fact that some pupils are transported on private buses does not mean that all must be (Appeal of Clancy, supra; Matter of Tomasso, 23 Ed Dept Rep 120, Decision No. 11,159; Appeal of Kelley, supra).

In the appeal before me, only petitioner"s son and one other student from respondent"s district attend RSHS.  While respondent transports students to certain other nonpublic schools by bus, the hours of attendance at RSHS (7:40 a.m. to 6:30 p.m.), are different from those of the other schools and do not lend themselves to sharing buses.  In addition, respondent has established that the cost of contracting a van to transport the two students during the 2003-2004 school would have been $26,784, whereas the cost of providing that transportation to both students by public carriers would be $3,300.

Petitioner"s argument that the Education Law limits the number of transfers that can be required is also without legal basis.  Education Law "3623-a(1)(c) defines transportation expenses eligible for State transportation aid for school districts, not student transportation requirements.

Nor does petitioner cite any legal basis for his allegation that a district must notify parents within a certain time frame.  His citation to the 30-day requirement in Education Law "3635(2) is not applicable here.  

Petitioner contends that the means of transportation is dangerous.  The public policy of this State, as expressed in Education Law "3635, does not permit eligibility for transportation in individual cases to be determined on the basis of potential hazard (Pratt v. Robinson, 39 NY2d 554; Matter of Studley v. Allen, 24 AD2d 678; Appeal of Bruner, 32 Ed Dept Rep 276, Decision No. 12,829) except in limited circumstances not relevant here (Education Law "3635-a).

With respect to petitioner"s argument that Mordechai is required to travel one hour and 50 minutes, I find that comparable travel times have been upheld (Appeal of DeVore, supra, one and one-half to two hours; Appeal of Corcoran, supra, one hour and 56 minutes for a first-grader; Appeal of Rouis, 20 Ed Dept Rep 493, Decision No. 10,493, one and one-half to one hour and 45 minutes).

The Commissioner will uphold a district"s transportation determination unless it is wholly unreasonable or an abuse of discretion (Appeal of Polifka, supra; Appeal of Capozza, 25 Ed Dept Rep 15, Decision No. 11,482; Appeal of Tomasso, supra).  In addition, petitioner has the burden of establishing the facts upon which he relies, and establishing a clear legal right to the relief sought (8 NYCRR "275.10; Appeal of Clancy, supra; Appeal of Samuels, 36 Ed Dept Rep 85, Decision No. 13,665).  In this case, petitioner has failed to prove that respondent acted unreasonably or abused its discretion in providing transportation for his son.  

THE APPEAL IS DISMISSED.

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