Appeal of LORI LANG, on behalf of her son JAKE ROBERT, from action of the Board of Education of the Valley Stream Central High School District regarding transportation.

Decision No. 17,513

(October 1, 2018)

Guercio & Guercio, LLP, attorney for the respondent, John P. Sheahan, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Valley Stream Central High School District denying her son (“the student”) transportation for the 2017-2018 school year.  The appeal must be dismissed.

At all times relevant to this appeal, petitioner and the student resided within respondent’s district and the student attended ninth grade at Regis High School, a nonpublic school located in New York City (“the nonpublic school”).

Respondent’s policy 8413 governs transportation to nonpublic school students.  The policy generally provides that the district will provide transportation “for students attending nonpublic schools not more than fifteen miles from their home.”

On March 2, 2017, petitioner submitted to respondent an “Annual Transportation Request Form For Transportation To Private And Parochial Schools” requesting transportation for the student to the nonpublic school for the 2017-2018 school year.  By letter dated March 8, 2017, respondent’s assistant superintendent for finance and operations (“assistant superintendent”) denied petitioner’s request stating that the mileage from petitioner’s home to the requested school of attendance “does not meet with the established distance requirements of more than [three] miles and less than [fifteen] miles ....”  By letter dated March 8, 2017, petitioner wrote to the district[1] and requested transportation “from Westwood Station to Jamaica Station (12 miles) where the subway or another train can then be taken to Regis from there.” The record does not include correspondence from respondent replying to petitioner’s March 8 letter.

The parties do not dispute that petitioner’s husband made several phone calls to the superintendent’s office during August and September 2017, or that on September 13, 2017, the superintendent spoke with petitioner’s husband and advised him of his right to submit an appeal of the denial of transportation to respondent which petitioner and her husband did by letter dated September 27, 2017.  By letter dated October 11, 2017, respondent upheld the decision of the assistant superintendent and denied petitioner’s request.  This appeal ensued. 

While the petition is not entirely clear, it appears that petitioner argues that the student’s request for transportation to the nonpublic school should be treated differently than other requests for nonpublic school transportation because he was accepted “into a competitive NYC school based on a merit scholarship.” Petitioner alleges that neighboring school districts provide full or partial reimbursement to students who attend Regis High School.  In her request for relief, petitioner seeks full reimbursement of the cost of the Long Island Railroad student monthly ticket to Penn Station, or in the alternative, the cost of the Long Island Railroad student monthly ticket to Jamaica Station.  Petitioner alleges that Jamaica Station is twelve miles from Westwood Station, “which falls under the 15 miles of required transportation under NYS Law (emphasis omitted).”  Finally, it appears that petitioner alleges a violation of Open Meetings Law.  She requests a review of how the district researched and reviewed her appeal.  She requests:

“a judicious review of the improper matter as to which [respondent] conducted their appeal research and resident notification for the ability to bring our matter in an open forum prior to a vote taking place behind closed doors.” 

Respondent argues that petitioner has failed to state a claim upon which relief can be granted, and therefore, the petition must be dismissed.  Respondent asserts that its determination to deny petitioner’s request for a variance was not arbitrary or capricious.

I will first address the procedural matters.  Respondent objects to the scope of petitioner’s reply.  Respondent submits a sur-reply and requests that I consider it in the event that I consider the new allegations contained within petitioner's reply.  As such, I need not consider respondent's sur-reply.

To the extent that petitioner raises a claim pursuant to the Open Meetings Law, the appeal must be dismissed for lack of jurisdiction.  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of McColgan and El-Rez, 48 id. 493, Decision No. 15,928).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

To the extent that petitioner seeks reimbursement for transportation costs, that claim must be dismissed.  The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Application of Kolbmann, 48 id. 370, Decision No. 15,888).

Finally, to the extent that petitioner challenges respondent’s denial of her request for transportation for the 2017-2018 school year, 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Transportation to a nonpublic school must be requested on a yearly basis and no later than the first day of April preceding the next school year (Education Law §3635[2]).  Therefore, the issue of transportation for the 2017-2018 school year is moot and no relief may be granted with respect to this school year (see Education Law §3635[2]; Appeal of T.A., 58 Ed Dept Rep, Decision No. 17,443; Appeal of Garazha, 55 id., Decision No. 16,833).

Even if the appeal were not dismissed for the reasons described above, 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 Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of S.T., 48 id. 389, Decision No. 15,894; Appeal of Hughes, 48 id. 299, Decision No. 15,865).  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 Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of Bittlingmaier, 45 id. 213, Decision No. 15,305; Appeal of Heffernan, 43 id. 447, Decision No. 15,046).

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 Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of S.T., 48 id. 389, Decision No. 15,894; Appeal of Hughes, 48 id. 299, Decision No. 15,865).

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

On this record, petitioner has not established that respondent’s denial of petitioner’s request for transportation was arbitrary, capricious, unreasonable, or an abuse of discretion.  In an affidavit, the superintendent avers that district records indicate that petitioner and the student do not reside within fifteen miles of the nonpublic school.  He also avers that the district does not currently provide transportation for one or more students who reside within fifteen miles of the nonpublic school.  Petitioner has provided no evidence to contradict the superintendent’s assertions.  On this record, therefore, the district is not required pursuant to Education Law §3635(1) to provide transportation to the student between his home and the nonpublic school, nor is it required to designate a centralized pickup point for transportation to and from the centralized pickup point to the nonpublic school.  Further, petitioner has cited no legal basis for her contention that her request for transportation should have been granted because this a “unique case (emphasis omitted)” or that the student is entitled to “partial” transportation for the cost of transportation between one train station and another located twelve miles from her home.  Moreover, petitioner has provided no evidence that the voters of the district have approved the provision of transportation beyond 15 miles, and absent such voter approval respondent is not authorized to provide the requested partial transportation (see Appeal of S.T., 48 Ed Dept Rep 389, Decision No. 15,894).[2]

Accordingly, on this record, I cannot conclude that respondent’s denial of petitioner’s request for transportation to the nonpublic school for the 2017-2018 school year was arbitrary, capricious or unreasonable. 

THE APPEAL IS DISMISSED.

END OF FILE