Appeal of CHRISTINE SHEEHAN, on behalf of her son BRIAN, from action of the Board of Education of the Washingtonville Central School District regarding transportation.

Decision No. 17,255

(November 15, 2017)

Thomas J. Cione, Esq., attorney for petitioner

Shaw, Perelson, May & Lambert, L.L.P., attorneys for respondent, Steven M. Latino, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the action of the Board of Education of the Washingtonville Central School District (“respondent”) in providing transportation to her son’s nonpublic school.  The appeal must be dismissed.

Petitioner resides within respondent’s school district.  According to the record, during the 2013-2014 school year, petitioner’s son attended John S. Burke Catholic High School (“Burke”), a nonpublic school located within 15 miles of petitioner’s residence.  By letter dated August 6, 2013 to the parents of students attending Burke, the district’s supervisor of transportation (“supervisor”) explained that, after a review of transportation requests, the district decided to change its transportation plan regarding bus services offered to its resident students who attend Burke.  The supervisor’s letter stated that, instead of receiving direct home-to-school transportation in the mornings, Burke students would ride school buses with public school students to the district’s high school and transfer to shuttle buses to go to Burke.  In the afternoon, all Burke students would be transported directly home from Burke.  This appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner seeks transportation directly to and from Burke, which she claims was provided by respondent in the prior school year.  Petitioner claims that respondent’s transportation plan for Burke is unreasonable and inconvenient and that it has increased her son’s bus travel time from 20 minutes to 90 minutes.  Petitioner argues that she was provided with no evidence of the “economic reasons” for the change in the transportation plan and alleges that the change is “unfair” to Burke students because it treats them differently from similarly situated public school students.  Petitioner further asserts that students attending St. John’s Catholic Elementary School (“St. John’s”) are bused directly to their school, and that prior to the district’s policy change, Burke students rode with them, but now Burke students must ride with public school students to the transfer point at respondent’s high school.

Respondent argues that the appeal must be dismissed as untimely and for failure to exhaust administrative remedies.  Respondent also asserts that petitioner has failed to demonstrate a clear legal right to the relief requested and maintains that the decision to change the transportation plan for Burke students was not arbitrary and capricious.  Respondent further claims that the change was necessary because it is more cost effective and resulted in approximately $35,000 in savings.  Respondent denies that petitioner’s son travels 90 minutes to Burke and asserts that the time is approximately one hour.  In any case, respondent asserts that 90 minutes is not excessive nor is there a maximum time for travel on a school bus (see e.g. Appeal of Gorsky, 47 Ed Dept Rep 162, Decision No. 15,658).  Respondent claims that its actions are in compliance with the Education Law and that any transportation plan involving St. John’s is “irrelevant” to the instant appeal.    

I must first address several procedural matters.  Respondent argues that the appeal must be dismissed for failure to exhaust petitioner’s administrative remedies. Respondent has not articulated any requirement in statute, regulation, or board policy which would require that petitioner appeal to the board before exercising her right to initiate an appeal pursuant to Education Law §310 (see Appeal of D.F. and N.F., 53 Ed Dept Rep, Decision No. 16,624).  Moreover, the record contains no evidence of any notice to petitioner of such a requirement.  Therefore, I decline to dismiss the appeal for failure to exhaust administrative remedies (see Appeal of D.F. and N.F., 53 Ed Dept Rep, Decision No. 16,624; Appeal of Olka, 48 id. 10, Decision No. 15,776; Appeal of Defonce, 34 id. 118, Decision No. 13,252). 

However, the appeal 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).  Petitioner’s request for interim relief was denied and the challenged plan involved transportation for the 2013-2014 school year, which has ended, rendering the matter academic.

The appeal is also dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872). 

Petitioner claims that the district “changed its bus policy” on September 4, 2013.  However, respondent argues that it notified parents of the change in its transportation policy by letter dated August 6, 2013, and the appeal is untimely, as it was initiated more than 30 days after such notice.

Generally, the time to commence an appeal runs from the date of the decision under review (see e.g. Appeals of Ytuarte and Thorp, 36 Ed Dept Rep 238, Decision No. 13,712; Appeal of Goodman, 35 id. 93, Decision No. 13,477).  Petitioner submits no evidence indicating that respondent made any decision or took any action regarding its transportation plan on September 4, 2013, as she claims; nor does she otherwise address respondent’s affirmative defense.  The record includes a letter dated August 6, 2013, by which petitioner was notified of the change in transportation.  Petitioner does not deny receipt of that letter.  Even with the five customary days for mailing, petitioner’s service of her appeal on October 3, 2013, is well over 30 days from petitioner’s receipt of the district’s August 6 letter, and the appeal must be dismissed as untimely.

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). 

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 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).  A district’s use of a centralized transfer point, alone, does not violate Education Law §3635 (Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of Gorsky, 47 id. 162, Decision No. 15,658).  In determining how transportation is to be provided in such cases, 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). 

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 claims that she was provided with no evidence of the economic reasons for the change in respondent’s transportation policy.  Respondent’s assistant superintendent for business (“assistant superintendent”) has submitted an affidavit setting forth the economic basis for the change to the district’s transportation plan for Burke in that the change resulted in savings to the district of approximately $35,000.  Petitioner does not refute respondent’s assertion.  Thus, respondent has demonstrated that it had a sound, non-discriminatory basis for altering the bus routes and transportation policy for Burke students, including petitioner’s son. 

Petitioner also argues that her son’s bus ride has expanded from 20 minutes to 90 minutes under the new transportation plan.  However, this assertion is contradicted by the assistant superintendent, who avers that petitioner’s son’s bus ride has increased only to approximately one hour, not 90 minutes.  Petitioner has submitted no reply to refute respondent’s assertions.  In any case, previous Commissioner’s decisions have held that a 90 minute bus ride is not excessive (Appeal of Gorsky, 47 Ed Dept Rep 162, Decision No. 15,658; Appeal of Reich, 38 id. 565, Decision No. 14,094; Appeal of Lavin, 32 id. 249, Decision No. 12,821). 

Petitioner claims the transportation plan is unfair because it treats Burke students differently from similarly situated public school students and certain other non-public school students who are bused directly from their homes to school.  However, the mere fact that respondent uses a variety of means to transport children to and from their respective schools or that it has utilized a centralized transfer point does not necessarily demonstrate that students are receiving unequal treatment within the meaning of Education Law §3635 (Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of Gorsky, 47 id. 162, Decision No. 15,658; Appeal of McCarthy and Bacher, 42 id. 329, Decision No. 14,872).

In the instant appeal, respondent is utilizing its high school as a transfer point for Burke students, which, as noted above, does not, in and of itself, violate Education Law §3635 (Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of Gorsky, 47 id. 162, Decision No. 15,658).  Respondent’s transportation plan does not require petitioner to transport her son to the high school.  Respondent will continue to pick the student up at his bus stop and transport him to Burke via the high school.  I find that respondent’s use of the transfer point is consistent with Education Law §3635 (see Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626).

Finally, to the extent petitioner objects to the transportation plan on the grounds that it requires her son to be “picked up by bus at our home with public school students,” petitioner does not allege or submit any evidence that respondent has acted improperly in this regard (see Appeal of Gorsky, 47 Ed Dept Rep 162, Decision No. 15,658).

Petitioner has not established that respondent’s transportation plan results in unequal treatment, is discriminatory or is otherwise improper (see Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of Gorsky, 47 id. 162, Decision No. 15,658).  Based on this record, I cannot conclude that respondent’s transportation plan for Burke students and the method of providing transportation to petitioner’s son is arbitrary, capricious, unreasonable or an abuse of discretion.

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

THE APPEAL IS DISMISSED.

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