Appeal of DUNIA MARRONE, on behalf of her daughter LINDSAY, from action of the Board of Education of the Seaford Union Free School District regarding transportation.

Decision No. 16,118

(August 4, 2010)

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

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Seaford Union Free School District (“respondent”) that her daughter, Lindsay, is not eligible for nonpublic school transportation.  The appeal must be dismissed.

On January 25, 2010, petitioner requested transportation for Lindsay to and from St. Mary’s College Preparatory High School (“St. Mary’s”) in Manhasset, New York for the 2010-2011 school year.  By letters dated January 26 and February 2, 2010, respondent’s assistant superintendent for business denied petitioner’s request.  Petitioner’s appeals to the superintendent of schools and respondent were denied.  This appeal ensued.

Petitioner asserts that her daughter resides in respondent’s district and that the shortest distance from her house to St. Mary’s is 16.87 miles.  Petitioner requests payment for busing up to 30 miles per day or a “possible arrangement with a school district within fifteen miles of St. Mary’s” which can provide transportation for her daughter.

Respondent maintains that petitioner’s daughter does not qualify for transportation to and from St. Mary’s and that the petition fails to state a cause of action upon which relief could be granted.  Respondent also raises additional affirmative defenses.

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).

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).

Here, the petition contains no facts or information demonstrating that petitioner is entitled to the relief she seeks.  Petitioner admits that her daughter lives more than 15 miles from St. Mary’s, and her petition does not set forth any facts or circumstances to suggest that Lindsay otherwise qualifies for nonpublic school transportation.  Petitioner does not dispute respondent’s assertion that its voters have not authorized transportation for distances in excess of 15 miles, or that it does not currently provide transportation to and from St. Mary’s for any resident student (and has not done so in any of the preceding three school years).  As a result, petitioner has failed to meet her burden of demonstrating a clear legal right to the relief requested.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE.