Appeal of M.W., on behalf of his son Y.D-W., from action of the Board of Education of the City School District of the City of White Plains regarding transportation.

Decision No. 17,008

(December 6, 2016)

Keane & Beane, P.C., attorneys for respondent, Ralph C. DeMarco and Suzanne E. Volpe, Esqs., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the White Plains City School District (“respondent”) to revise its after-school child care transportation policy to exclude transportation to religious instruction.  The appeal must be dismissed.   

Petitioner’s son, Y.D-W. (the “student”), attends public school at Post Road Elementary School in respondent’s district.  According to the record, on four days each week, respondent transports the student to the YMCA pursuant to Education Law §3635(1)(e) which authorizes transportation to before and after-school child care locations.  On Wednesdays, the student had also been transported by respondent to after-school Hebrew School at Bet Am Shalom Synagogue (“the Hebrew School”) for religious instruction.  Respondent admits that for three years, it provided after-school transportation to parochial schools once a week for approximately thirteen public school students.  Respondent states that it initially believed that the transportation was being provided for childcare, not religious instruction. 

In March 2015, respondent published its “Request for Transportation to/from Childcare Provider” application form for the 2015-2016 school year.  The form includes a statement that New York State law “... does not recognize an after school religious instruction program as a Childcare (sic) location, therefore, we cannot meet those requests.”  On March 31, 2015, petitioner faxed his request for after-school transportation to the Hebrew School on Wednesdays.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 22, 2015.

Petitioner challenges respondent’s transportation policy as illegal for not considering a parochial school that provides religious instruction as a “child care location” under Education Law §3635(1)(e).  He argues that religious education provided at a parochial school is an “after-school childcare location” within the meaning of Education Law §3635(1)(e); that the Education Law prohibits discrimination between religious and non-religious child care providers; that respondent has discretion to transport students to “after-school child care locations” offering religious instruction; and that the current policy will burden his and many other working families in the community.  Petitioner seeks a determination that respondent continue transporting the student to the Hebrew School, that respondent “reverse its policy of discrimination” and an order that respondent “cease denial of transportation to any after-school childcare location within White Plains on the sole ground that the location offers religious instruction or is not otherwise covered by Social Services Law §390.”

Respondent argues that the Hebrew School is not a child care location within the meaning of Education Law §3635(1)(e) and that, consequently, petitioner’s son is not entitled to after-school transportation to that location.  Respondent further argues that petitioner is attempting to couch religious instruction as childcare within the meaning of Education Law §3635(1)(e) but that religious instruction is specifically excluded from the general definition of “child day care” under Social Services Law §390(1)(a).  Respondent asserts that it is not permitted to provide transportation for its public school students to an after-school site for the purposes of receiving religious instruction. 

Education Law §3635(1)(e) authorizes boards of education to offer transportation to and from “before-and/or-after-school child care locations.” For purposes of Education Law §3635(1)(e), a “before-and/or-after-school child care location” is defined as:

a place, other than the child's home, where care for less than twenty-four hours a day is provided on a regular basis for a child who attends  school within the school district, provided that such place is situated within the school district.  This definition includes, but is not limited to, a variety of child care services such as day care centers, family day care homes and in-home care by non-relatives.

Petitioner argues that the Hebrew School constitutes a child care location under Education Law §3536(1)(e) and that districts which offer such transportation must offer it equally to all children in like circumstances residing in the district.  He claims respondent’s policy, thus, may not prohibit his request for after-school transportation of his son to the Hebrew School.  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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioner bases his claim of entitlement to transportation for his son to the Hebrew School on Education Law §3635(1)(e).  A review of the legislative history of that statute reveals that it was enacted to address the needs of working families, the increasing numbers of single parent and two working parent households, and the growing issue of “latch key” children by facilitating the use of before- and after-school child care.  Transportation solely to receive additional instruction, albeit for music lessons, tennis lessons, or religious instruction was not contemplated under the statute.

Here, petitioner is not claiming that the Hebrew School exists for the purpose of providing after-school child care but, instead, describes a program consisting solely of religious education.  I find nothing in the statute or legislative history authorizing transportation for such purpose.  To find otherwise would require school districts to transport students to, for example, sports lessons, music lessons and tutoring, rather than to child care providers as contemplated by the statute.

Moreover, this result is consistent with statutory provisions in the Social Services Law pertaining to child day care.  Section 390(1)(a)(ii)(B) of the Social Services Law provides, in part, that “child day care shall not refer to care provided in ... an after-school program operated for the purpose of religious education, sports, or recreation.”  In both cases, the intention was not to deem religious education in an after-school setting as “child care.”

In support of his position, petitioner cites to a provision of Education Law §3635(1)(e), as amended by Chapter 665 of the Laws of 1990, that states, in pertinent part, as follows:

a board of education furnishing transportation pursuant to this paragraph may limit the provision of such transportation to child care locations located within the attendance zone of the school the child attends, and to day care centers and school age child care programs licensed or registered pursuant to [§390] of the Social Services law located anywhere within the district.

The legislative history of Chapter 665 of the Laws of 1990 indicates that this language was intended to authorize boards of education to impose certain limitations on transportation to child care locations rather than being required to offer transportation to all child care locations within the mileage limits specified in Education Law §3635(1)(e), as the Commissioner had ruled in Appeal of Albert, 27 Ed Dept Rep 371, Decision No. 11,979.  The effect of such language is to permit a board of education to limit transportation to before- and after-school child care locations in the student’s attendance zone when such child care locations are unlicensed or unregistered under the Social Services Law, such as for care by relatives.  By using the conjunction “and,” the statutory language signals that boards of education must provide transportation to licensed or registered day care centers and school age child care programs on a district-wide basis rather than by attendance zone (see Appeal of Tighe, 47 Ed Dept Rep 206, Decision No. 16,669; Appeal of Grove, 33 id. 176, Decision No. 13,016).

Petitioner erroneously construes that provision as permitting transportation to locations for religious education within the student’s attendance zone, based on his argument that because Education Law §3635(1)(e) requires that transportation to child care locations be provided equally to all children in like circumstances, a board of education can only impose the limitations specifically authorized by Chapter 665 of the Laws of 1990, and therefore may not exclude religious institutions.  Petitioner’s argument assumes that an instructional program, such as religious instruction, is a child care location within the meaning of Education Law §3635(1)(e).  I find no support in the legislative history of Chapter 683 of the Laws of 1986, which enacted Education Law §3635(1)(e), or of Chapter 665 of the Laws of 1990 for the proposition that “child care” as used in §3635(1)(e) is intended to encompass instructional programs.  For all these reasons, I find that the statutory distinction between licensed/registered and unlicensed/unregistered child care locations in Education Law §3635(1)(e) does not require the conclusion that transportation to a child care location encompasses religious education or any other form of instructional program or authorizes transportation thereto.

Respondent’s reliance on my decision in Appeal of Santicola (37 Ed Dept Rep 79, Decision No. 13,809) is also misplaced.  In that appeal, petitioner relied on a theory of contractual rights and due process to support his claim for transportation to religious instruction.  This appeal was dismissed, finding no contractual obligation on the part of the school district and did not address any issues such as those raised herein.  Santicola, thus, is not dispositive.

As noted, petitioner has the burden of proof.  Petitioner has not alleged any facts that his transportation request is actually for a child care purpose.  Instead, he states that the purpose of transporting the student is so the student can attend the Hebrew School where he receives religious instruction.  For the reasons set forth above, Education Law §3635(1)(e) provides no authority to boards of education to offer transportation to religious instruction.  As petitioner has not met his burden, the appeal is dismissed.

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

THE APPEAL IS DISMISSED.

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