Appeal of JENNIFER MILLS, on behalf of her son DUSTIN, from action of the Board of Education of the Pocantico Hills Central School District regarding transportation.

Decision No. 15,988

(September 21, 2009)

Ingerman Smith L.L.P., attorneys for respondent, Ethan D. Balsam, Esq., of counsel

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

Petitioner removed her son from respondent’s schools in February 2009 and enrolled him in a nonpublic school for the remainder of the 2008-2009 school year.  Petitioner was informed by the assistant superintendent that Dustin could not receive transportation to the nonpublic school.

On April 1, 2009, after business hours, petitioner hand-delivered a transportation request for the 2009-2010 school year to a custodial employee.

By letter dated May 12, 2009, petitioner was notified that her transportation request was denied because it was submitted after the April 1 deadline.  This appeal ensued.  Subsequently, by letter dated June 24, 2009, petitioner was notified that her son was also ineligible for transportation because the distance between her home and the nonpublic school exceeded 15 miles.  The parties addressed both grounds for denial in this appeal.

Petitioner alleges that she was not told that she could request transportation for the remainder of the 2008-2009 school year or that there was a deadline for submitting her 2009-2010 transportation request.  Petitioner further maintains that her 2009-2010 request was timely and that her home is within 15 miles of the nonpublic school.  Petitioner requests that I order respondent to reimburse her for transportation costs for the 2008-2009 school year and that I order respondent to approve her 2009-2010 transportation request.

Respondent contends that petitioner’s request for reimbursement is moot and untimely, and that the Commissioner lacks the authority to award monetary damages.  Respondent maintains that petitioner’s son is not entitled to transportation in 2009-2010 because petitioner’s request was untimely and the distance between his home and the nonpublic school is greater than 15 miles.

Initially, I find that petitioner’s 2009-2010 transportation request was timely.  Petitioner states, and respondent acknowledges, that three copies of the transportation request were hand-delivered after business hours to a custodial employee on April 1.  Petitioner asserts that in his presence, one copy of the request was placed on the desk of respondent’s superintendent, one copy was placed on a desk in the transportation department and one copy was placed under the door of respondent’s assistant superintendent.  Prior Commissioner’s decisions have held that a request is timely submitted when it is mailed by the April 1 deadline (seee.g.Appeal of Hendrick, 37 Ed Dept Rep 188, Decision No. 13,838).  Consistent with these decisions, I find that hand-delivery to the offices of the appropriate school administrators on April 1, even after business hours, was a timely submission.

Respondent, however, further maintains that petitioner’s son is not entitled to transportation because he lives more than 15 miles from the nonpublic school.  The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Morgan, 46 Ed Dept Rep 474, Decision No. 15,568; Appeal of Girsdansky, 46 id. 105, Decision No. 15,455).

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).

In this case, respondent contends that petitioner resides more than 15 miles from the nonpublic school, that there has been no voter authorization for transportation beyond 15 miles and it has not transported other students to the nonpublic school within the last three years.  Respondent’s assistant superintendent for finance and support avers that, using a trip odometer reading of a school bus, the distance between petitioner’s home and the nonpublic school was measured on three separate occasions to be no less than 15.2 miles.  He also avers that the measurement was taken in the same manner as all other transportation measurements by the district.  In addition, respondent submits a statement from a district bus driver that he measured the distance between petitioner’s home and the nonpublic school as 15.3 miles.

Petitioner disputes respondent’s measurements and points to Internet directions from Rand McNally’s website and a statement from a transportation company school bus driver to support her contention.  However, she has failed to produce any evidence to refute the accuracy of the district’s distance calculations by the methods utilized.

A board of education is neither required to expend an unreasonable amount of time, effort or money in measuring distances for the purpose of determining eligibility for transportation, nor make such measurements with the accuracy of a professional survey (Appeal of Flemming, 43 Ed Dept Rep 391, Decision No. 15,028; Appeal of Schlick, 40 id. 207, Decision No. 14,462; Appeal of Stegner, 35 id. 502, Decision No. 13,613).  It is reasonable and sufficient to use an automobile odometer to measure distance to determine eligibility (Appeal of Schlick, 40 id. 207, Decision No. 14,462; Appeal of Adamitis, 38 id. 765, Decision No. 14,137; Appeal of Jagoda, 34 id. 154, Decision No. 13,266).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  Based on the record before me, petitioner has failed to meet her burden of proving that respondent’s denial of her transportation request was arbitrary and capricious.  Therefore, I find that petitioner’s son is not entitled to transportation.

Finally, petitioner requests that she be awarded reimbursement for the cost of transporting her son to and from school during the 2008-2009 school year.  The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of F.P., 46 Ed Dept Rep 134, Decision No. 15,465; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).

THE APPEAL IS DISMISSED.

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