Appeal of GERIANNE BITTLINGMAIER, on behalf of her son JOSEPH, from action of the Board of Education of the Briarcliff Manor Union Free School District regarding transportation.

Decision No. 15,305

(August 29, 2005)

Kuntz, Spagnuolo, Scapoli & Schiro, P.C., attorneys for respondent, Raymond G. Kuntz, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Briarcliff Manor Union Free School District ("respondent") that her son, Joseph, is not entitled to transportation to a nonpublic school. The appeal must be dismissed.

Petitioner resides with Joseph in a private gated community, Rosecliff, within the boundaries of respondent's district. On March 9, 2004, petitioner requested that the district provide transportation for Joseph from their home to Iona Preparatory School ("Iona"), a nonpublic school located in New Rochelle.

Petitioner's community has two gates. The main gate is open to members of the public who are guests. The other gate is closed to everyone except owners. The district measured the distance from petitioner's home to Iona using each gate and found the distance from petitioner's home to Iona to be 14.65 miles using the "owners only" gate, and 15.68 miles using the main gate. The district decided to use the main gate route for the purpose of determining transportation eligibility. Accordingly, it determined that petitioner's son lived more that 15 miles from Iona and was not entitled to transportation.

On July 23 and August 3 and 12, 2004, the district's superintendent advised petitioner that her son would not receive transportation because he resided more than 15 miles from the school. On August 17, 2004, petitioner appealed the superintendent's decision to respondent. By letter dated August 25, 2004, the superintendent notified petitioner that respondent upheld her decision, stating in pertinent part:

The Board determined that proper measurement of the distance between your home and the Iona School is along the route that is not barred to the public. That route is in excess of 15 miles. The Board of Education also determined not to furnish transportation pursuant to the discretionary exemption in Education Law �3635(1)(b)(ii), principally on the ground of the additional cost, approximately $24,000.

Education Law �3635(1) establishes a system of entitlement to transportation services to nonpublic schools. Transportation between a pupil's home and the nonpublic school that the pupil attends must be provided if the distance between such home and school is within the statutorily prescribed limits for such transportation (Appeal of Heffernan, 43 Ed Dept Rep 447, Decision No. 15,046; Appeal of Porzio, 42 id. 166, Decision No. 14,808; Appeal of Hurd, 41 id. 473, Decision No. 14,749). The statute requires a board of education to provide transportation for elementary school pupils between home and school for distances of between 2 and 15 miles and for secondary school pupils between home and school for distances of between 3 and 15 miles, the distances in each case being measured by the nearest available route between the student's home and the school. The minimum distance may be shortened and/or the maximum distance may be extended by local district policy after approval by district voters (Education Law �3635[1][a]; Appeal of Heffernan, 43 Ed Dept Rep 447, Decision No. 15,046; Appeal of Porzio, 42 id. 166, Decision No. 14,808; Appeal of Lucente, 40 id. 455, Decision No. 14,526).

Additionally, transportation may be furnished for certain other pupils attending a nonpublic school in accordance with Education Law �3635(1)(b)(i). A school district providing transportation to a nonpublic school for pupils living within the specified distances from such school must designate one or more public schools as centralized pickup points, and must provide transportation between such pickup points and such nonpublic school for pupils residing too far from the nonpublic school to qualify for regular transportation between home and school. The statute does not require transportation from centralized pickup points to any nonpublic school to which regular home-to-school transportation is not already being provided (Appeal of Heffernan, 43 Ed Dept Rep 447, Decision No. 15,046; Appeal of Porzio, 42 id. 166, Decision No. 14,808; Appeal of Lucente, 40 id. 455, Decision No. 14,526).

Education Law �3635(1)(b)(ii) further states that a board of education "may, at its discretion," provide transportation from a centralized pickup point for pupils residing within the district to a nonpublic school located more than 15 miles from the home of any such pupil, provided that transportation has been provided to the nonpublic school in at least one of the immediately preceding three school years (Appeal of Lucente, 40 Ed Dept Rep 455, Decision No. 14,526; Appeal of Goldstein, 40 id. 159, Decision No. 14,448). When a school district exercises its discretion to provide transportation pursuant to Education Law �3635(1)(b)(ii), the statute requires that the distance from the centralized pickup point to the nonpublic school must not be more than 15 miles (Appeal of Turner, 40 Ed Dept Rep 156, Decision No. 14,447; Appeal of Bank, et al., 40 id. 141, Decision No. 14,442).

In this case, the district has not extended the maximum distance for transportation; the maximum distance from home to school is 15 miles. Petitioner's son was not entitled to transportation under Education Law �3635(1)(b)(i) because no other district resident attended the nonpublic school in the 2004-2005 school year, and the district decided not to provide transportation to petitioner's son under its discretionary authority provided by Education Law �3635(1)(b)(ii) because of the cost.

The issue in this case centers upon the route that may be used to measure the distance between petitioner's home and Iona. Petitioner contends that the distance should be measured using the "owners only" gate. Alternatively, petitioner contends that the distance should be measured from the school bus pickup point, and not her home. Respondent contends that the distance should be measured using the gate that the community has designated to be used by the public as guests of the community and not through a gate that is locked and bars entrance to anyone other than owners. Respondent also contends that the measurement must be made from the student's home, not from a school bus pickup point.

The district provides photographs of the two entrances to Rosecliff. One entrance has a closed metal bar gate across the entrance. Posted on the closed gate is a sign that reads, "Owners Only." While petitioner asserts that this gate is unlocked, the district disputes this assertion and states that the gate is locked and may only be operated by residents of Rosecliff. Petitioner has provided no further evidence to establish that the gate is unlocked. The photograph of the other gate, the main entrance, shows an open gate and an adjacent gatehouse. The sign on the gatehouse reads, "Access Limited to Owners and Guests." The district states that this is the entrance the community permits the district's school buses to use to pick up kindergarten students and students with disabilities.

Establishing transportation routes and measuring distances is within the discretion of a board of education, and the Commissioner will not set aside such actions unless it appears that the board has been arbitrary, capricious or unreasonable (Appeal of a Student with a Disability, 43 Ed Dept Rep 524, Decision No. 15,073; Appeal of Mogel, 41 id. Rep 127, Decision No. 14,636;Appeal of Rosen, 37 id . 107, Decision No. 13,816). I find that the district acted reasonably in measuring the route through the gate that the community has designated for use by the public as guests of the community, rather than the gate restricted to owners only. Petitioner has not established in the record before me that the distance between her home and Iona using the main gate is within 15 miles. Moreover, petitioner has not established that the district acted inconsistently in measuring distances between home and school for students living in the community.

Petitioner also contends that the distance to the school should be measured from the pickup point designated by the district for students in Rosecliff who are eligible for transportation, not from her home. Education Law �3635(1)(a) requires the district to measure by the nearest available route between home and school. While the district may establish pickup points, measurements for the purpose of determining eligibility for transportation must be made to and from the residences of the children involved. Such measurements may not be made to and from bus stops located in the vicinity of the residences, even though such bus stops may actually be used as pickup points for pupils who are eligible for transportation (Appeal of Scheuerman, et al., 22 Ed Dept Rep 143, Decision No. 10,911). Therefore, the district was correct in measuring the distance to Iona from petitioner's home.

THE APPEAL IS DISMISSED.

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