* Subsequent History: Matter of Board of Educ. of Lawrence Union Free School Dist. v McColgan; Supreme Court, Albany County; Judgment dismissed petition to review; December 7, 2007. *

Appeal of GARVAN MCCOLGAN, LEILA EL-REZ, FU-YUN TANG, ALBERTA S. LIBBEY, STEVEN THALER, CLAUDIA THALER, EVELYN JULIANO, JUDY PIERANTONI, GARY PIERANTONI, NORMAN TURNESHINE, ARLEN RICE-COHEN, ELINOR KAISER, ELAINE ATTELL, MICHAEL ELLOWITZ MAXINE GELLER, MARILYN DIAZ, TARA INCANTALUPO, ALBERT OCCHUIZZO, MARGARET OCCHIUZZO and FRANK TORTORICI from actions of the Board of Education of the Lawrence Union Free School District regarding a transportation referendum.

Decision No. 15,650

(August 31, 2007)

Elizabeth Meyerson, Esq. attorney for petitioners

Minerva & D'Agostino, P.C., attorneys for respondents, Melinda Sims, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal actions of the Board of Education of the Lawrence Union Free School District ("respondent") regarding a transportation referendum.  The appeal must be sustained in part.

On March 26, 2007, respondent’s board proposed a transportation referendum (“Proposition 3”) to authorize the use of district funds for limited pre-kindergarten (“pre-k”) transportation and to reduce distance eligibility for student transportation.  Specifically, with respect to pre-k transportation, Proposition 3 would provide transportation to pre-k programs that provide services to a minimum of 25 kindergarten and pre-k children, not less than five of which are residents of respondent’s district, whose residence is located not more than 7.5 miles from the public or private school at which they attend.  A child must be four years of age on or before December 1^st to be eligible for transportation.

Petitioners claim that the pre-k transportation criteria contained in Proposition 3 improperly restricts pre-k transportation to eight nonpublic Jewish religious schools (“eight yeshivas”).  Petitioners also argue that respondent board’s allocation of $600,000 ($465,000 for transportation to the eight yeshivas and $135,000 for the district’s universal pre-k program) is not sufficient. Additionally, petitioners argue that respondent board improperly linked pre-k transportation and the reduced distance eligibility for student transportation in a single referendum.  Finally, petitioners contend that Education Law does not authorize pre-k transportation.

Petitioners request that the referendum vote be stayed and that respondent board’s decision to schedule the referendum be overturned.  Petitioners’ request for interim relief, staying the districtwide vote on Proposition 3, was denied on May 4, 2007.  On May 15, 2007, Proposition 3 was approved by the district’s voters.

Respondent asserts that they have fully examined the costs of providing the pre-k transportation and that those costs were adequately allocated for in the budget.  Respondent further asserts that Proposition 3 does not improperly link the issues of pre-k transportation and the formalization of the district’s transportation mileage policy.  Respondent states that the formalization is necessary because the issue has not been voted upon in many years and current district transportation policy differs from that which is authorized.  Respondent also states that transporting all pre-k children would be prohibitively expensive, but that Proposition 3 places reasonable limits on eligibility, which do not impermissibly benefit anyone.  Respondent acknowledges that Education Law does not specifically authorize pre-k transportation, but argues that it does not prohibit it.  Therefore, respondent claims that submitting the proposition to the district voters for their authorization was lawful.  Respondent further argues that the appeal should be dismissed as moot, since the voters approved Proposition 3 on May 15, 2007.

Respondent also requests that I disregard petitioners’ reply because it is not verified and it sets forth additional facts and allegations not previously asserted.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Additionally §275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified.  Petitioners’ reply submits new evidence to support the allegations in his petition.  Moreover, the reply submitted was not verified.  Therefore, I have not considered petitioners’ reply (Appeal of a Student with a Disability, 46 Ed Dept Rep ___, Decision No 15,562; Appeal of a Student with a Disability, 46 id. 102, Decision No 15,454; Appeal of Nocerino, 40 id. 244, Decision No. 14, 472).

The appeal must be dismissed as moot to the extent that petitioners requested a delay or cancellation of the transportation referendum.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  Petitioners’ stay request was denied and the vote took place on May 15, 2007, leaving no possibility of any meaningful relief.

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).

While Education Law §3635(1) requires respondent to provide transportation for children in grades kindergarten and above, it does not require or authorize respondent to provide transportation for children attending pre-kindergarten.  Absent statutory or regulatory authority, such as transportation for the “universal pre-k” program (see Education Law §3602-e; 8 NYCRR §151-1.2[a]), a board of education's authority to provide transportation is restricted to the limitations set forth in Education Law §3635 (Appeal of Neubauer, 32 Ed Dept Rep 320, Decision No. 12,841).

Education Law §3635(1)(e) authorizes, but does not require, a board of education, at its discretion, to provide transportation under specified circumstances to any child attending grades kindergarten through eight between the school such child legally attends and child care locations, including daycare centers.  However, the statute does not provide a board of education with authority, even discretionary, to provide transportation to a child of less than school age, except in the limited circumstances where such child is accompanying a parent who is under 21 years of age to and from such parent's school (see Education Law §3635[1][f]; Appeal of a Preschool Child with a Disability, 43 Ed Dept Rep 343, Decision No. 15,012).  Accordingly, pursuant to Education Law §3635, respondent has no authority to use district resources to provide pre-k transportation.

As to the change in the district’s mileage policy, I note that the record indicates that respondent’s district is operating under a contingency budget. Education Law §2023(2), governing contingency budgets, provides in pertinent part:

Notwithstanding the defeat of a school budget, school districts shall continue to transport students to and from the regular school program in accordance with the mileage limitations previously adopted by the qualified voters of the school district.  Such mileage limits shall change only when amended by a special proposition passed by a majority of the qualified voters of the school district.

Although a district may continue under a contingency budget to transport students pursuant to an existing policy, the mileage limitations must have been previously adopted by the qualified voters of the school district (Education Law §2023; Appeal of Powell, 46 Ed Dept Rep ___, Decision No. 15,597; Appeal of Wenger, 37 id. 5, Decision No. 13,790).  Therefore, pursuant to Education Law §§3635(1)(a) and 2023(2), in order to change the district’s transportation mileage policy, respondent board exercised its authority to submit the matter to the voters for their approval.

On May 15, 2007 district voters specifically authorized a change in the district’s transportation mileage policy, which is therefore unaffected by my findings relating to pre-k transportation.

In light of this disposition, I need not address the parties’ remaining contentions.  Nothing in this decision shall be construed to limit respondent’s authority to provide transportation for children participating in its universal pre-k program pursuant to Education Law §3602-e.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent henceforth fully comply with Education Law §3635 and approve transportation policies in strict compliance with the statutory requirements.

IT IS FURTHER ORDERED that, with respect to matters that were authorized pursuant to the May 15, 2007 school district vote, respondent refrain from using district resources to transport pre-k children, in accordance with the terms of this decision.

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