Appeal of CHRISTINE FREEMAN and JESSE FREEMAN, on behalf of their son, from action of the Board of Education of the Oyster Bay–East Norwich Central School District regarding transportation.

Decision No. 17,980

(April 6, 2021)

Ingerman Smith LLP, attorneys for respondent, Ellen M. Vega, Esq., of counsel

ROSA., Commissioner.--Petitioners challenge the refusal of the Board of Education of the Oyster Bay–East Norwich Central School District (“respondent”) to change the transportation pick-up/drop-off point (“bus stop”) for their son (“the student”).  The appeal must be dismissed. 

Petitioners and the student live on a private road within respondent’s district.  The student, who began attending respondent’s schools during the 2020-2021 school year, receives transportation from the district at a designated bus stop.  The bus stop is located within 200 yards of petitioners’ driveway at the intersection of petitioners’ private road and a public road.  On or about September 8, 2020, in response to an inquiry from petitioners about the student’s bus stop, respondent’s transportation coordinator informed petitioners that “all bus stops” are on the public road and “that the bus does not go up” petitioner’s private road. 

On September 11, 2020, petitioners requested that respondent review the student’s bus stop and relocate it to a location along their private road, on the ground that the existing location is unsafe.  On September 16, 2020, respondent denied petitioners’ request, stating that the district’s “school buses will not go down private roads.”  This appeal ensued.

Petitioners admit that they reside on a private road but argue that vehicles larger than a school bus pass up and down their road “daily without difficulty.”  Petitioners contend, among other things, that the designated bus stop is unsafe because it requires the student to stand on the road since there are no sidewalks or road shoulders.  Petitioners request that the student’s bus stop be changed to a location on their private road.  

Respondent contends that it acted reasonably and within its discretion when it denied petitioners’ request to change the student’s bus stop.  Specifically, respondent avers that its transportation coordinator “analyzed the safety” of the student’s bus stop and “deemed it safe” and that the district does not designate bus stops on any private roads.

First, I must address a procedural issue.  Respondent objects to the scope of petitioners’ reply, in which petitioners raise “new factual information in support of [their] petition.”  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

Turning to the merits, a board of education has broad discretion to determine how to provide transportation (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891).  In making that determination, a board must consider safety, convenience, efficiency, and cost (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  A board has both the authority and the responsibility to resolve difficult questions that arise when balancing the overall efficiency and economy of a transportation system against the convenience of individual students (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891).

A board of education may exercise reasonable discretion when designating pick-up and drop-off points (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  In establishing a pick-up point, a board must balance considerations of pupil safety and convenience, routing efficiency, and cost (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  The law does not require a school district “to furnish transportation to a child directly to or from his or her home” (Education Law § 3635 [1] [d]).  Thus, a board has discretion to require students to walk to pick-up and drop-off points from which transportation will be provided (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186).  It is the responsibility of the parent or guardian, not the district, to ensure that a child safely reaches the pick-up point (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186; 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 establishing the facts upon which he or she 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 will uphold a district’s transportation determination unless it is arbitrary or  capricious (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

Initially, I note that while a school district is not obligated to provide transportation over private thoroughfares, it is not legally precluded from doing so (Appeal of Bedell, 31 Ed Dept Rep 35, Decision No. 12,560; Appeal of Taylor, 26 id. 255, Decision No. 11,747).  Therefore, the mere fact that petitioners reside on a private road is not dispositive of this appeal.

Nevertheless, petitioners have failed to meet their burden of proving that respondent abused its discretion in denying their request to relocate the student’s bus stop.  Although I am sympathetic to petitioners’ concerns, they have submitted no evidence, beyond their conclusory and speculative assertions, to establish that the student’s bus stop is unsafe.  Further, the conditions to which petitioners object, including the volume of traffic and lack of sidewalks, are common to many bus stops in rural and suburban areas and not, in and of themselves, a basis for deeming the current bus stop unsafe (see e.g. Appeal of Grocholl, 59 Ed Dept Rep, Decision No. 17,804; Appeal of Halpern, 58 id., 17,480; Appeal of Weinschenk, 47 id. 518, Decision No. 15,770).

Respondent, meanwhile, submits an affidavit from the transportation coordinator, in which she states that she “analyzed the safety” of the student’s bus stop “as well as the walking distance from [petitioners’] house” and “determined that the bus stop is appropriate and safe.”  The transportation coordinator also indicates that petitioners’ private road is unsuitable for a bus stop because it “is very narrow with a significant amount of overhanging trees and branches,” which renders it “too dangerous for a bus to navigate.”  Further, she asserts that the district has used the student’s bus stop “since approximately 2006” and “has no records of having ever received a complaint regarding the safety of this location.”  Thus, on this record, petitioners have not met their burden of proving that respondent’s refusal to change the student’s bus stop was arbitrary or capricious.

THE APPEAL IS DISMISSED. 

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