Appeal of JANET MARKARIAN, on behalf of her children ALEXANDER and ABAGAIL COLLIER, from action of the Boards of Education of the Oysterponds Union Free School District and the Greenport Union Free School District regarding transportation.

Decision No. 15,644

(August 22, 2007)

John J. McGrath, Esq., attorney for petitioner

Kevin A. Seaman, Esq., attorney for respondent Board of Education of the Oysterponds Union Free School District

Guercio & Guercio, attorneys for respondent Board of Education of the Greenport Union Free School District, Kelly A. Reape, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determinations of the Boards of Education of the Oysterponds Union Free School District (“Oysterponds”) and the Greenport Union Free School District (“Greenport”) (collectively “respondents”) denying her children, Alexander and Abagail, free transportation to a nonpublic school during the 2007-2008 school year.  The appeal must be dismissed.

Petitioner is a resident of Orient, which is within Oysterponds.  Pursuant to a contractual arrangement, Greenport provides educational services for secondary school students residing in Oysterponds.  This agreement does not require Greenport to provide transportation to Oysterponds students.

During the 2006-2007 school year, Greenport provided transportation for petitioner’s children to the Ross School, a nonpublic school.  Petitioner was charged $5,600 per student for this transportation.

On March 22, 2007, petitioner requested that Oysterponds provide transportation for her children to the Ross School for the 2007-2008 school year.  By letter dated April 13, 2007, Oysterponds denied petitioner’s transportation request because her children resided more than 15 miles from the Ross School.

Petitioner also requested that Greenport provide transportation for her children to the Ross School for the 2007-2008 school year.  By letter dated April 26, 2007, Greenport agreed to provide such transportation at a cost to petitioner of $5,700 per student.

This appeal ensued.  Petitioner’s request for interim relief was denied on May 30, 2007.

Generally, petitioner claims that she is a resident of both districts and that “one or the other of the two school districts, or a combination of the two bear responsibility for the cost of providing transportation” for her children.

With respect to Oysterponds, petitioner claims that its decision to deny transportation is arbitrary and capricious.  Petitioner appears to argue that Oysterponds is obligated to provide her children with free transportation or to pay for transportation provided by Greenport because “other students of the school district are provided transportation to private schools beyond the statutory fifteen mile limit.” 

In the alternative, petitioner maintains that Greenport is responsible for providing her children with free transportation because it transported her children during the 2006-2007 school year and has agreed to do so for the 2007-2008 school year.

Oysterponds maintains that it properly denied petitioner’s request for transportation because petitioner does not reside within 15 miles of the Ross School and the district does not transport any other eligible Oysterponds student to that school.

Greenport argues that petitioner is a resident of Oysterponds and that Greenport has no obligation to provide free transportation for nonresident students attending nonpublic schools.

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Smith, 44 Ed Dept Rep 201, Decision No. 15,148; Appeal of Flemming, 43 id. 391, Decision No. 15,028; Appeal of Bissar, 43 id. 74, Decision No. 14,923).

A school district must provide transportation for all children attending grades kindergarten through eight who live between 2 and 15 miles from school and for all children attending grades 9 through 12 who live between 3 and 15 miles from school, the distances in each case being measured by the nearest available route from home to school (Education Law §3635[1][a]; Appeal of Trader, 43 Ed Dept Rep 191, Decision No. 14,967; Appeal of Wenger, 37 id. 5, Decision No. 13,790).  Transportation for a lesser or greater distance than that set forth in statute may only be provided upon approval by the voters of the district (Education Law §3635[1][a]; Appeal of Trader, 43 Ed Dept Rep 191, Decision No. 14,967; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  If such transportation is provided, it must be offered equally to all students in like circumstances residing in the district (Education Law §3635[1][a]; Appeal of Trader, 43 Ed Dept Rep 191, Decision No. 14,967; Appeal of Mogel, 41 id. 127, Decision No. 14,636).

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 (Education Law §3635[1][a]; Appeal of Bittlingmaier, 45 Ed Dept Rep 213, Decision No. 15,305; Appeal of Heffernan, 43 id. 447, Decision No. 15,046; Appeal of Porzio, 42 id. 166, Decision No. 14,808).  Although 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 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 Bittlingmaier, 45 Ed Dept Rep 213, Decision No. 15,305; Appeal of Heffernan, 43 id. 447, Decision No. 15,046; Appeal of Porzio, 42 id. 166, Decision No. 14,808). 

Additionally, transportation may also 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 pick-up points, and must provide transportation between such pick-up 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 pick-up points to any nonpublic school to which regular home-to-school transportation is not already being provided (Appeal of Bittlingmaier, 45 Ed Dept Rep 213, Decision No. 15,305; Appeal of Heffernan, 43 id. 447, Decision No. 15,046; Appeal of Porzio, 42 id. 166, Decision No. 14,808). 

Education Law §3635(1)(b)(ii) further states that a board of education "may, at its discretion," provide transportation from a centralized pick-up 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 Bittlingmaier, 45 Ed Dept Rep 213, Decision No. 15,305; Appeal of Lucente, 40 id. 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 pick-up point to the nonpublic school must not be more than 15 miles (Appeal of Bittlingmaier, 45 Ed Dept Rep 213, Decision No. 15,305; Appeal of Turner, 40 id. 156, Decision No. 14,447; Appeal of Bank, et al., 40 id. 141, Decision No. 14,442).

     With respect to Oysterponds, there is no evidence that transportation is required pursuant to Education Law §3635(1)(a) or (b).  Oysterponds determined, and petitioner does not dispute in this appeal, that petitioner resides more than 15 miles from the Ross School, thus making Alexander and Abagail ineligible under §3635(1)(a).  Nor is there any evidence that any other Oysterponds student attends this nonpublic school.  The fact that a Greenport student may attend the Ross School does not obligate Oysterponds to provide transportation to petitioner’s children.  Thus, Alexander and Abagail are not eligible for transportation from Oysterponds under §3635(1)(b)(i).

With respect to petitioner’s claim that Greenport must provide her children with free transportation, Education Law §3635(1)(a) requires school districts to provide transportation for all resident children to and from the school a child legally attends within certain parameters.  Greenport is not required to provide transportation for nonresident students (Appeal of Jeudy, 46 Ed Dept Rep __, Decision No. 15,579; Appeal of Fuller, 41 id. 86, Decision No. 14,623; Matter of Empson, 19 id. 139, Decision No. 10,067).

Petitioner acknowledges that she and her children live in Orient, which is within the Oysterponds Union Free School District.  Petitioner has submitted no evidence that she is a Greenport resident.  Therefore, Greenport is not required to provide petitioner’s children with free transportation to a nonpublic school.

Petitioner also seeks reimbursement for the fees charged by Greenport for transporting her children during the 2006-2007 school year.  Greenport argues that this claim is untimely.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The record indicates that Greenport notified petitioner of its transportation fee for nonresident students by letter dated June 19, 2006.  Nearly a year later, in May 2007, petitioner commenced this appeal, in which she raises an objection to Greenport’s fee.  As a result, her claim is untimely and must be dismissed.

Finally, petitioner requests that she be awarded costs and attorney fees.  However, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of T.R. and M.D., 43 Ed Dept Rep 411, Decision No. 15,036; Appeal of L.D. and M.D., 43 id. 144, Decision No. 14,947; Appeal of Moore, 41 id. 436, Decision No. 14,738).

THE APPEAL IS DISMISSED.

END OF FILE