Appeal of KATHRYN HERMANN, on behalf of her son ALEX, from action of the Board of Education of the Gananda Central School District regarding transportation.

Decision No. 15,976

(August 24, 2009)

Wayne A. Vander Byl, Esq., attorney for respondent

HUXLEY, Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Gananda Central School District (“respondent”) denying her son, Alex, transportation to a nonpublic school.  The appeal must be dismissed.

In July 2008, petitioner requested transportation for Alex to Bishop Kearney High School (“Kearney”), a nonpublic school, for the 2008-2009 school year.  At that time, respondent’s transportation director (“director”) advised petitioner that Alex would not be eligible for transportation since no residence in the district is within 15 miles of Kearney.

On August 4, 2008, the director informed petitioner that the district would be transporting a special education student to Kearney and therefore could accommodate Alex.  Subsequently, the district learned that the other student was not eligible for transportation and notified petitioner that it would not provide transportation for Alex. 

On December 16, 2008, petitioner requested that Alex be transported to Kearney by a neighboring school district.  On January 21, 2009, respondent refused to approved this arrangement because it would violate the district’s 15-mile transportation limit.  This appeal ensued.

Petitioner seeks transportation for Alex to and from Kearney.  She argues that the lack of transportation is a hardship. 

Respondent contends that petitioner’s son is not entitled to transportation since he resides more than 15 miles from Kearney and is not otherwise entitled to transportation.  Respondent also argues that the appeal is untimely. 

The appeal must be dismissed as moot.  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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Petitioner’s transportation request is for the 2008-2009 school year.  Since that school year has ended, the appeal is moot.

The appeal must also be dismissed as 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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  The district denied petitioner’s transportation request on August 26, 2008 and petitioner served her petition several months later on May 29, 2009, well beyond the 30-day timeframe.  Even if the 30-day period were calculated from the date respondent denied transportation through a neighboring school district, the appeal would be untimely.  Petitioner has offered no good cause for her delay.  Therefore, the appeal must be dismissed. 

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  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).

Petitioner does not dispute that she and her son reside more than 15 miles from Kearney, and respondent has not approved any transportation beyond 15 miles.   Petitioner also does not offer any evidence that the district is transporting other students to Kearney.  Further, the district has not provided any other student with transportation in one of the immediately preceding three school years, which could make petitioner’s son eligible for transportation at the district’s discretion.  Therefore, petitioner has failed to establish any legal entitlement to the requested transportation. 

THE APPEAL IS DISMISSED.

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