Appeal of CAROL POLES, on behalf of her son MICHAEL, from action of the Board of Education of the Millbrook Central School District regarding transportation.

Decision No. 16,800

(August 3, 2015)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Millbrook Central School District (“respondent” or “board”) denying her son, Michael, transportation to a nonpublic school.  The appeal must be dismissed.

On or about February 14, 2015, petitioner, a resident of the district, made a request on behalf of her son, to the Millbrook Central School District for bus transportation to Poughkeepsie Day School, a nonpublic school, for the 2015-2016 school year.  The record indicates that petitioner lives in excess of 15 miles from Poughkeepsie Day School. Petitioner’s son has attended Poughkeepsie Day School since September 2014 and respondent provided Michael with bus transportation during the 2014-2015 school year.

Respondent’s assistant superintendent for business, finance and operations (“assistant superintendent”) provides an affidavit stating that “[t]he district provides transportation for all eligible resident children who attend nonpublic schools located within 15 miles of the child’s home”, as well as “transportation for children who live further than 15 miles from the nonpublic school of attendance from a centralized pick-up point, if there is at least one child attending that nonpublic school” (whom he refers to as the “anchor student”).  The assistant superintendent further states that he “became aware,” prior to the start of the 2014-2015 school year, that in the past, “[r]espondent provided transportation to children who attend nonpublic schools that are more than 15 miles from the child’s home if there was a bus going to a nonpublic school within the same geographic area of the child’s nonpublic school, even if there were no anchor student.”  By letter in September 2014 (updated and resent in March 2015), the assistant superintendent advised parents of nonpublic school students, and the nonpublic schools as well, “that [r]espondent would no longer transport children who resided further than 15 miles from the nonpublic school of attendance unless there was an anchor student.  The letter stated:

Please note that requests for transportation of distances greater than 15 miles will be denied, even if they have been approved in the past ....  In the event that there is at least one non-public transportation request to a given school that is within the 15-mile limit, Millbrook Central School District will create a centralized pick-up point which will accommodate all other transportation requests for that school, which otherwise would have been denied (emphasis in original).

Petitioner’s transportation request was denied by respondent on or about April 15, 2015.  This appeal ensued.  Petitioners’ request for interim relief was addressed by letter on May 19, 2015 and was not granted.[1]

Petitioner contends that Michael is being provided with bus transportation from a designated centralized pickup point to Poughkeepsie Day School.  With respect to the 2014-2015 school year, petitioner further contends that three other students at Michael’s pickup point were also being transported to nonpublic schools, and upon information and belief, she asserts that one of those students lives within 15 miles of Poughkeepsie Day School.  With respect to 2015-2016, petitioner asserts upon information and belief, that respondent granted the 2015-2016 request of another of the students who meets at the centralized pickup point, and that such student will be attending a nonpublic school located more than 15 miles from his residence, similar to Michael’s transportation circumstances.[2]  Petitioner maintains that respondent’s decision to deny transportation to Michael was improper; and has no rational, reasonable support or explanation; and is arbitrary and capricious.  Petitioner requests that bus transportation be afforded to Michael for the 2015-2016 school year from the currently designated centralized pickup point to Poughkeepsie Day School and that the Commissioner sustain petitioner’s appeal of respondent’s denial of transportation.  The petition also requested that the Commissioner stay respondent’s decision to deny transportation and order respondent to continue to provide transportation to Michael for the balance of the 2014-2015 school year.

Respondent denies that Michael is being provided with bus transportation from a designated centralized pickup point and further asserts that during the 2014-2015 school year, Michael was picked up at his home, after the students at the centralized pickup point were picked up, as his home is on the route to the nonpublic schools to which respondent is providing transportation.  Respondent further contends that this transportation was “provided in error” since there is no student within the district who attends Poughkeepsie Day School and resides within 15 miles of such nonpublic school.[3]  With respect to 2015-2016, respondent asserts that it has not received a request for transportation to Poughkeepsie Day School for any student who resides within 15 miles of such nonpublic school, and therefore is not obligated to transport Michael to such nonpublic school.  Respondent also asserts that neither its provision of transportation in error in the past, nor the fact that respondent transports students to other nonpublic schools within reasonable proximity to Poughkeepsie Day School, obligates it to provide transportation to Michael to Poughkeepsie Day School.  Respondent argues that the appeal must be dismissed for failure to exhaust administrative remedies, for failure to demonstrate a clear legal right to the relief requested; and that respondent’s decision to alter transportation arrangements to nonpublic schools for the 2015-2016 school year was not arbitrary, capricious, or unreasonable but was based on considerations of economy and efficiency, and should not be reversed.

Initially, I will address the procedural issues.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.  Likewise, I also have not considered petitioner’s additional request for relief that I ask respondent to provide the Commissioner with additional information related to the transportation requests of other students, but note that an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857). 

Respondent also argues that the appeal must be dismissed for failure to exhaust administrative remedies because petitioner did not appeal to respondent.  However, respondent has failed to articulate any requirement in statute, regulation or board policy which would require petitioner to appeal to the board of education before exercising her right to initiate an appeal pursuant to Education Law §310.  Consequently, there is no basis to dismiss this appeal for failure to exhaust administrative remedies (Appeal of Krevoy, 48 Ed Dept Rep 103, Decision No. 15,804; Appeal of Hobbs, 38 id. 203, Decision No. 14,015; Appeal of Deleewerk, 37 id. 453, Decision No. 13,903).

 

With respect to petitioner’s request for continued transportation for the balance of the 2014-2015 school year, petitioner’s claim 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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The school year has ended and respondent agreed to provide transportation for the remainder of the 2014-2015 school year, petitioner’s transportation request with respect to 2014-2015 is now moot.

With respect to petitioner’s transportation in the 2015-2016 school year, the appeal, however, must 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 S.T., 48 Ed Dept Rep 389, Decision No. 15,894; Appeal of Hughes, 48 id. 299, Decision No. 15,865; Appeal of Keller, 47 id. 224, Decision No. 15,677).  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 S.T., 48 Ed Dept Rep 389, Decision No. 15,894; Appeal of Hughes, 48 id. 299, Decision No. 15,865; Appeal of Keller, 47 id. 224, Decision No. 15,677).

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 S.T., 48 Ed Dept Rep 389, Decision No. 15,894; Appeal of Hughes, 48 id. 299, Decision No. 15,865; Appeal of Keller, 47 id. 224, Decision No. 15,677).  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).

A board of education has broad discretion to determine how transportation is to be provided (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  Moreover, a board of education has both the responsibility and the authority to decide difficult questions in balancing the overall efficiency and economy of a transportation system against the convenience of individual students (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  The fact that a district transported a student in prior years does not estop the district from declining to provide such transportation (Appeal of Rohde, 45 Ed Dept Rep 255, Decision No. 15,313; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073; Appeal of Robert G., 32 id. 60, Decision No. 12,758).  Moreover, a district has no authority to make an exception to the eligibility requirement of Education Law §3635 merely because it erroneously provided transportation to a student in the past (Appeal of a Student with a Disability, 43 Ed Dept Rep 524, Decision No. 15,073; Appeal of Robert G., 32 id. 60, Decision No. 12,758).  If a board of education is providing transportation for a pupil who is not legally entitled to it, the solution is to discontinue such transportation (Appeal of a Student with a Disability, 43 Ed Dept Rep 524, Decision No. 15,073; Appeal of Turner, 40 id. 156, Decision No. 14,447; Appeal of Whitaker, 33 id. 59, Decision No. 12,974).

With respect to petitioner’s request for transportation in the 2015-2016 school year, it is within respondent’s discretion to change its former policy of providing transportation to children who live further than 15 miles from their nonpublic school if there was a bus going to a nonpublic school within the same geographic area, even if there was no resident student attending the nonpublic school who lives within 15 miles of such school.  Education Law §3635(1)(b)(i) only requires centralized transportation to a nonpublic school to which regular home-to-school transportation is being provided (Appeal of S.T., 48 Ed Dept Rep 389, Decision No. 15,894).  Respondent’s assistant superintendent attests in an affidavit that for the 2015-2016 school year, there was no request for transportation to Poughkeepsie Day School from the parent of a student who resides within 15 miles of such school (Education Law §3635[1][b][i]).

Petitioner also cites to Education Law §3635(1)(b)(ii) which allows districts to provide transportation for students to a nonpublic school located more than 15 miles from their home, provided that such transportation was provided in at least one of the immediately preceding three school years, and contends that respondent’s provision of transportation to Michael in 2014-2015 permits this.  However, this statute is plainly discretionary, rather than mandatory, and respondent reiterates that transportation was provided to Michael in 2014-2015 in error, that Michael was picked up at his home, rather than from a centralized pickup point (the latter being an additional condition for operation of Education Law §3635[1][b][ii]), and the change in policy for 2015-2016 was made to reduce costs.  Thus, petitioner’s son is not entitled to transportation pursuant to Education Law §3635(1)(b)(ii) (see Appeal of Hughes, 48 Ed Dept Rep 299, Decision No. 15,865). 

Thus, I find that petitioner's son is not entitled to transportation under either Education Law §3635(1)(b)(i) or (ii).

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

THE APPEAL IS DISMISSED.

END OF FILE