Appeal of N.A., on behalf of her son B.A., from action of the Board of Education of the Valley Stream 30 Union Free School District regarding transportation.

Decision No. 17,155

(August 21, 2017)

Law Offices of Guercio & Guercio, LLP, attorneys for respondent, Barbara J. Emigholz, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Valley Stream 30 Union Free School District (“respondent”) to deny her request for transportation.  The appeal must be dismissed.

During the 2015-2016 school year, petitioner’s son was a kindergartener in respondent’s district.  Respondent’s transportation policy provides:

Transportation between home and school shall be provided at district expense to students in kindergarten through sixth grade if they live between 2 and 15 miles from their school.

On March 31, 2016, petitioner submitted an application, on behalf of her son, to the district requesting bus transportation to Crescent School, a nonpublic school, which according to petitioner, is six to seven miles from her home.  By letter dated March 31, 2016, petitioner requested bus transportation to Hamza Academy, a nonpublic school, that according to petitioner, is two miles from her home.  The letter stated that petitioner was informed by a member of respondent’s staff that her son would not be eligible for transportation to and from Hamza Academy because it is less than two miles from her home but that, according to Google Maps, Hamza Academy is two miles from her home. The letter further stated that she initially wanted her son to attend Hamza Academy, but because she cannot provide transportation to and from the school, she also completed an application for transportation to Crescent School.[1]

By letter dated April 15, 2016, respondent’s assistant superintendent for business denied petitioner’s request for transportation to and from Hamza Academy.  The letter stated that “Hamza Academy is less than two miles from your home address and as such would not meet the minimum mileage requirement.”

By letter dated April 20, 2016, petitioner appealed the denial to respondent.  She argued that MapQuest appeared to make an error when calculating the distance between her home and Hamza Academy, located at 200 Stuart Avenue.  By letter dated May 17, 2016, respondent upheld the superintendent’s determination.  By email dated August 1, 2016, petitioner wrote to respondent’s superintendent and stated that Hamza Academy is not located at 200 Stuart Avenue, but is actually located at 202 Stuart Avenue.  By letter dated August 18, 2016, the superintendent denied petitioner’s request.  The letter stated:

[T]here is nothing to indicate that the address utilized by the [d]istrict in its determination did not accurately represent the location of Hamza Academy.  Both the MapQuest and the Transfinder routing software determined that [petitioner’s residence] was less than two (2) miles from the Hamza Academy, regardless of the address used for the school’s location. 

This appeal ensued.  Petitioner’s request for interim relief was denied on October 5, 2016. 

Petitioner argues that based on registration information she received from Hamza Academy, a letter from the principal of Hazma Academy, and statements from other parents of students who attend the school, its address is 202 Stuart Avenue.  Petitioner has also submitted a letter from a civil engineer employed by the Town of Hempstead confirming that the mailing address for the parcel on which Hamza Academy is located is 202 Stuart Street, as well as copies of tax records that use such address.  Petitioner argues that the distance between her residence and 202 Stuart Avenue is exactly two miles.  Petitioner challenges respondent’s use of MapQuest.  Specifically, petitioner states that MapQuest does not automatically provide the shortest route between two places, but that “you can change your route by moving the cursor.”  She alleges that the route used by the district is only under two miles because it provides “a route that would make an unnecessary stop.”  Petitioner requests an order that respondent provide her son with transportation to Hamza Academy. 

Respondent argues that the appeal should be dismissed as untimely and for improper service.  Respondent further argues that petitioner has failed to state a claim upon which relief can be granted and that she has failed to meet her burden of proof.  Respondent asserts that it acted appropriately and properly and that the challenged decisions were not arbitrary, capricious or unreasonable. Finally, respondent objects to the scope of petitioner’s reply. 

First, I will address certain 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.

The appeal must be dismissed for improper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877). 

On September 19, 2016, the petition was filed with my Office of Counsel.  Petitioner also submitted an affidavit of service indicating that the petition was served on the “senior account clerk” who was duly authorized to accept service, on September 16, 2016.  However, in its affirmation in opposition to petitioner’s request for interim relief, respondent asserts that service upon the senior account clerk is not in compliance with Commissioner’s regulations.  Respondent submitted an affidavit from the senior account clerk who attests that the process server handed her an envelope without indicating that it contained the notice of petition and petition and without asking if she was authorized to accept service on behalf of the district.  She further attests that she has not been designated by respondent to accept service of legal documents on behalf of the district.  Indeed, a senior account clerk is not one of the individuals set forth in §275.8(a) of the Commissioner’s regulations upon whom service on a board of education may properly be effected.  Both respondent’s superintendent of schools and its district clerk have submitted affidavits confirming that the notice of petition and petition were not served upon them or any other person who has been authorized by the board of education to accept service.  In her reply, petitioner states that the senior account clerk knew she was accepting a “310 appeal” but submits no evidence to refute respondent’s claim that the senior account clerk was not authorized to accept service.

When there is no proof that an individual is authorized to accept service on behalf of respondent, service is improper and the appeal must be dismissed (Appeal of C.C., 53 Ed Dept Rep, Decision No 16,526; Appeal of Willis, 50 id., Decision No. 16,211; Appeal of Terry, 50 id., Decision No. 16,117).  On this record, I cannot conclude that petitioner properly served a copy of the notice of petition and petition on respondent in accordance with §275.8(a) of the Commissioner’s regulations.  Accordingly, the appeal must be dismissed.

Even if the appeal was not dismissed on procedural grounds, it would 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).

A school district has broad discretion in selecting measurement points on school property for purposes of determining eligibility for transportation (Appeal of Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Flemming, 43 id. 391, Decision No. 15,028).  It may measure transportation distances from any part of the school or a resident’s property, so long as it does so fairly and consistently (Appeal of Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Flemming, 43 id. 391, Decision No. 15,028; Appeal of Porzio, 42 id. 166, Decision No. 14,808).  Commissioner's decisions have upheld measurements using a variety of reference points, such as a corner of the school property (Appeal of Canossa, et al., 37 Ed Dept Rep 456, Decision No. 13,904), a side entrance of the school (Appeal of Mermelstein, et al., 30 Ed Dept Rep 119, Decision No. 12,406), the point at which the child first comes in contact with the grounds of the school he or she attends (Appeal of Pavony, et al., 27 Ed Dept Rep 295, Decision No. 11,951), a point at the entrance gate to the school grounds (Matter of Feldblum, 4 Ed Dept Rep 156, Decision No. 7499) and the mid-point of the school (Matters of Silbert, et al. and Fitzpatrick, 1 Ed Dept Rep 283, Decision No. 6607).  Furthermore, there is nothing improper about a district using multiple entrances as a means to measure distance, provided a uniform policy is adopted (Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636; Matters of Silbert, et al. and Fitzpatrick, 1 id. 283, Decision No. 6607).

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of A.P., 48 id. 380, Decision No. 15,891).  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 Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Schwab, 47 id. 73, Decision No. 15,630; Appeal of Flemming, 43 id. 391, Decision No. 15,028).

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).

Respondent states that it determines eligibility for transportation under its policy based on “the nearest available route between the student’s home and school” and that it determined the distance between the student’s home and Hamza Academy to be 1.7 miles if the 200 Stuart Avenue address is used.  An affidavit from respondent’s superintendent states that the district used MapQuest routing software and “confirmed the Map[Q]uest distance calculations by using Transfinder, the routing software used by the [d]istrict’s bus company,” confirming that the distance between the student’s home and Hamza Academy is less than two miles.  On this record, petitioner has established that the correct mailing address for Hamza Academy is 202 Stuart Avenue, but the record indicates that respondent has measured the distance between her home and Hamza Academy to be less than two miles.

Petitioner has failed to meet her burden of proof.  Establishing transportation routes and measuring distances is within the discretion of a board of education, and the Commissioner will not set aside such actions unless it appears that he board has been arbitrary, capricious or unreasonable (Appeal of a Student with a Disability, 48 Ed Dept Rep 223, Decision No. 15,844; Appeal of Sanguine, et al., 48 id., 179, Decision No. 15,830).  Education Law §3635(1)(a) requires that the distance be measured by the nearest available route, which is not necessarily the most direct and efficient route (see Appeal of Sanguine, et al., 48 Ed Dept Rep 179, Decision No. 15,830).  Petitioner alleges that respondent is “providing a route that would make a [sic] unnecessary stop” when calculating the distance between her home and Hamza Academy “to obtain a shorter route.”  Petitioner appears to be arguing that the route selected by respondent is not the most efficient route but has not proven that such route is not the nearest available route.  In addition, while the petition is not entirely clear, petitioner appears to allege that respondent is not being consistent when calculating distance.  However, other than petitioner’s blanket assertions, the petition is devoid of any proof in support of petitioner’s contentions.  On this record, petitioner has not established any facts demonstrating that respondent has been arbitrary or capricious or unreasonable in measuring the distance between her home and Hamza Academy.

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

THE APPEAL IS DISMISSED.

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