Appeal of PAUL KENNEY, on behalf of his son, JACK KENNEY, from action of the Board of Education of the Malverne Union Free School District regarding transportation.

Decision No. 17,833

(April 21, 2020)

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

TAHOE., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Malverne Union Free School District (“respondent”) denying his son (“the student”) transportation to a nonpublic school.  The appeal must be dismissed.

On or about March 8, 2019, petitioner, a resident of respondent’s district, requested transportation on behalf of the student to Xavier High School, a nonpublic school, for the 2019-2020 school year.[1]  Respondent’s transportation policy dictates, in relevant part, that respondent will provide transportation to students attending nonpublic schools if they reside “not more than 15 miles from the school they legally attend.”

By letter dated March 8, 2019, respondent’s assistant superintendent for district operations denied petitioner’s request for transportation for the 2019-2020 school year on the basis that the distance between Xavier High School and petitioner’s home was 21.5 miles.  By letter dated April 5, 2019, petitioner appealed the assistant superintendent’s decision to respondent.  Respondent informed petitioner that it denied his appeal by letter dated April 10, 2019.  This appeal ensued.

Petitioner asserts that respondent’s denial of transportation for the student to the nonpublic school violates Education Law §3635.  Specifically, petitioner contends that, under the statute, a student is entitled to transportation “up to 15 miles,” without regard to the distance between such student’s home and the nonpublic school that he or she attends.  Petitioner further avers that “other children in the district attending high school in New York City” have received transportation in the past.  Petitioner seeks an order that the student “be granted transportation reimbursement to Xavier High School up to 15 miles ....”

Respondent contends that petitioner fails to establish facts sufficient to support his claim for relief.  Respondent additionally asserts that it properly denied petitioner’s request for transportation pursuant to Education Law §3635.  Finally, respondent states that it has not provided transportation to any student attending a nonpublic school more than 15 miles from such student’s home since September 2016.

First, I must address a procedural issue.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of a Student with a Disability, 48 id. 98, Decision No. 15,803).

Here, respondent served its answer by regular mail on June 11, 2019.  Petitioner’s reply was thus due June 25, 2019; however, petitioner did not serve his reply until July 2, 2019.  Because petitioner did not seek or obtain an extension of time to reply, the reply is untimely (8 NYCRR §276.3).  Accordingly, I have not accepted petitioner’s reply as part of the record before me.

Turning to the merits, the appeal must be dismissed on the ground that petitioner has failed to meet his burden in demonstrating a clear right to the relief requested.  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).

Education Law §3635(1)(b)(ii) further states that a board of education “may, at its discretion,” provide transportation from a centralized pick-up point for pupils residing within the district to a nonpublic school located more than 15 miles from the home of any such pupil, provided that transportation has been provided to the nonpublic school in at least one of the immediately preceding three school years (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).  When a school district exercises its discretion to provide transportation pursuant to Education Law §3635(1)(b)(ii), the statute requires that the distance from the centralized pick-up point to the nonpublic school must not be more than 15 miles (Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of Bittlingmaier, 45 id. 213, Decision No. 15,305; Appeal of Turner, 40 id. 156, Decision No. 14,447).

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).  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).

Petitioner contends that Education Law §3635 requires a school district to provide transportation for “up to 15 miles,” irrespective of the distance from a student’s home to the school which he or she legally attends.  Petitioner thus avers that, although he and the student reside more than 15 miles from Xavier High School, respondent must provide transportation for the first 15 miles of the student’s commute.  Petitioner’s interpretation of the statute is incorrect.  As noted in petitioner’s prior appeal, the 15-mile limit established by Education Law §3635 has consistently been applied as a threshold to determine whether a student is entitled to receive transportation, not an amount of transportation to which a student is entitled regardless of whether the distance between the student’s home and the school which he or she legally attends exceeds 15 miles (see e.g. Appeal of Juguet, 59 Ed Dept Rep, Decision No. 17,706; Appeal of Lang, 58 id., Decision No. 17,503; Appeal of Students with Disabilities, 51 id., Decision No. 16,341; see generally Matter of Toye, 2 id. 58, Decision No. 6,946).  Therefore, petitioner’s claim is without merit.

Additionally, although petitioner asserts that respondent has provided transportation “to other children in the district attending high school in New York City,” he does not allege that respondent has provided transportation to any student attending Xavier High School.  In its answer, respondent affirmatively asserts that “[d]istrict voters have never approved any modification to the statutory 15-mile maximum distance between home and school pursuant to Education Law §3635”; that the district does not utilize centralized pick-up points to provide transportation to nonpublic schools; and that the district has not transported any students to Xavier High School “in the past three years.”  Petitioner thus fails to establish that his son is eligible to receive transportation pursuant to Education Law §3635(1)(b)(ii).

To the extent petitioner suggests that other students within the district may have received transportation inconsistent with the statutory limitations or board policy, petitioner submits no evidence in support of this claim and has thus failed to meet his burden of proof.  In any event, even assuming, arguendo, that respondent provided transportation inconsistent with Education Law §3635 or board policy, the fact that a district previously transported a student does not estop the district from declining to provide such transportation (Appeal of Lachman, 56 Ed Dept Rep, Decision No. 17,039; Appeal of Rohde, 45 id. 255, Decision No. 15,313; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073).  Moreover, a district has no authority to make an exception to the eligibility requirements of Education Law §3635 merely because it erroneously provided transportation to a student in the past (Appeal of Lachman, 56 Ed Dept Rep, Decision No. 17,039; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073).  If a board of education is providing transportation to which a pupil is not legally entitled, the solution is to discontinue such transportation (Appeal of Lachman, 56 Ed Dept Rep, Decision No. 17,039; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073; Appeal of Turner, 40 id. 156, Decision No. 14,447).

Because petitioner has not established that the student is entitled to transportation under any provision of Education Law §3635 or board policy, I am unable to conclude that respondent’s determination to deny petitioner’s application for transportation was arbitrary, capricious, unreasonable, or an abuse of discretion.

THE APPEAL IS DISMISSED.

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