Appeal of RAJENDRA LACHMAN, on behalf of his child GISELE, from action of the Board of Education of the Oyster Bay – East Norwich Central School District regarding transportation.

Frazer and Feldman, LLP, attorneys for respondent, Christie R. Jacobson, Esq., of counsel

Decision No. 17,039

(February 8, 2017)

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Oyster Bay – East Norwich Central School District (“respondent” or “board”) denying transportation to and from petitioner’s home for the 2015-2016 school year.  The appeal must be dismissed.

Petitioner’s daughter, Gisele (“the student”), attends respondent’s Oyster Bay High School (“the high school”) which educates students in grades seven through twelve.  Upon her entrance into the 7th grade in the 2014-2015 school year, petitioner sought transportation for his daughter to and from school to their home.

The record indicates that respondent has adopted a transportation policy authorized by district voters, which provides transportation only to students who reside 1.25 miles or more from the school which the student attends.  The record indicates that this policy was adopted on March 22, 2005.  The policy further states that:

Distance from home to school shall be measured along the nearest available routes (not necessarily the bus route) to a single point on each school site.  All decisions regarding eligibility for transportation to the in[-]district schools will be based on maps on file in the office of the Board of Education.

The record indicates that, upon petitioner’s request for transportation, respondent measured the distance from petitioner’s home to the high school using three different measurement methods: Transfinder (a school bus routing system used by the district), Google maps, and bus route maps created for the district by an outside vendor in 2002.  Applying all three measurement methods, respondent observed that petitioner’s residence was less than 1.25 miles from the high school and denied petitioner’s request for transportation for the 2014-2015 school year.  Subsequently, petitioner requested child care transportation for his daughter to another home located on the same street as their residence.[1]  Respondent submits that this address was mistakenly deemed eligible for transportation and petitioner’s request for transportation to and from that address was granted for the 2014-2015 school year.

In the 2015-2016 school year, petitioner again requested transportation on behalf of his daughter to and from his home.  Respondent again denied petitioner’s request for transportation, citing the transportation policy and the location of petitioner’s home, which is less than 1.25 miles from the high school.  Respondent again agreed to provide transportation to the same child care location as the 2014-2015 school year, which is located on the same street as petitioner’s residence. Respondent submits that this address was again mistakenly deemed eligible for transportation.

The record indicates that, by email dated September 24, 2015, petitioner challenged respondent’s denial of transportation to and from his home.  Petitioner indicated that two additional homes on the same street which are located closer to the high school were receiving transportation, one of which was located next door to petitioner’s residence.  Petitioner renewed his request for transportation to and from his home.  Respondent indicates that such request was interpreted as a request for child care transportation to and from the home next door to petitioner’s residence.  The student was subsequently granted child care transportation to that address.  Respondent submits that this address was also mistakenly deemed eligible for transportation.

The record indicates that on September 29, 2015, respondent board reviewed its transportation policy and confirmed that petitioner’s home was located less than 1.25 miles from the high school.  As a result, the student was ineligible for transportation pursuant to the transportation policy adopted by the board and approved by the voters.  By letter dated October 2, 2015, respondent’s assistant superintendent for finance and operations informed petitioner that, pursuant to the district’s transportation policy and because both petitioner’s home and childcare locations are located less than 1.25 miles from the high school, the student is ineligible for transportation and such transportation would cease on October 19, 2015.  Respondent also informed petitioner that it had come to the district’s attention that transportation had been provided to other ineligible homes, and that such transportation would also cease.  Respondent asserts that an identical letter was mailed to the other addresses within the district which were discovered to be ineligible for transportation pursuant to the district’s transportation policy.

By email dated October 6, 2015, petitioner challenged such determination and requested a meeting with respondent.  Respondent accommodated petitioner’s request and held such a meeting on October 7, 2015 during which respondent explained to petitioner that in cases where unauthorized transportation has been discovered, there is no authority to continue to provide such transportation when it falls outside of the parameters approved by the voters in the transportation policy.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 26, 2015.

Petitioner contends that because respondent historically provided transportation to and from other homes in his neighborhood which fall below the mileage limits, his child should also be provided with transportation to and from their home. Petitioner contends that failure to extend such transportation is “prejudicial, discriminatory, bias [sic] and illegal.”  Petitioner further asserts claims of discrimination and bias in favor of a neighbor who erroneously received transportation, despite living outside the applicable mileage radius, because of the neighbor’s status as a member of the school board.  Petitioner seeks a determination that his child is eligible for transportation to and from respondent’s high school from his home, and such other relief as the Commissioner deems just and proper.

Respondent contends that petitioner has failed to meet his burden of demonstrating a clear legal right to the relief requested and maintains that the decision to deny the student transportation was within respondent’s lawful authority and discretion.

A school district must provide transportation for all children attending grades kindergarten through eight who live between 2 and 15 miles from school and for all children attending grades 9 through 12 who live between 3 and 15 miles from school, the distances in each case being measured by the nearest available route from home to school (Education Law §3635[1][a]; Appeal of Schwab, 47 Ed Dept Rep 73, Decision No. 15,630; Appeal of Bittlingmaier, 45 id. 213, Decision No. 15,305).  Transportation for a lesser or greater distance than that set forth in statute may only be provided upon approval by the voters of the district (Education Law §3635[1][a]; Appeal of Bittlingmaier, 45 Ed Dept Rep 213, Decision No. 15,305; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073).  If such transportation is provided, it must be offered equally to all students in like circumstances residing in the district (Education Law §3635[1][a]; Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636).

The record indicates that, pursuant to the authority of Education Law §3635(1)(a), the voters of the district approved a policy which provides transportation to students who live 1.25 miles or more from the school they attend.  Using three different methods of measurement, respondent determined that petitioner’s home is located less than 1.25 miles from the high school.  Petitioner does not contend, nor has he provided any evidence, that the district’s measurement of the distance between his house and the high school was in error.  Therefore, the student is ineligible to receive transportation.

Petitioner contends that because transportation has been provided to other students residing on the same street, despite being located less than 1.25 miles from the high school, respondent should extend such transportation to his child.  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).

Therefore, based on this record, I cannot conclude that respondent’s decision to deny petitioner’s child transportation pursuant to its transportation policy was arbitrary, capricious, unreasonable or an abuse of discretion.

Only the voters of the school district are empowered to authorize transportation at distances below the statutory minimums of two miles for grades K-8 and three miles for grades 9-12 set forth in Education Law §3635(1)(a).  Petitioner’s recourse, if he wishes to change the mileage limits, is to submit a petition for a proposition to have the voters, at a school district meeting, authorize transportation at a lesser distance.  Unless and until such a change is approved by the voters, I admonish respondent that it is obligated to apply the approved mileage limits uniformly to all district residents.

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

THE APPEAL IS DISMISSED.

END OF FILE