Appeal of M.L., on behalf of her child, from action of the Board of Education of the East Rockaway Union Free School District regarding transportation.

Decision No. 18,109

(April 11, 2022)

Frazer & Feldman, LLP, attorneys for respondent, Jonathan Heidelberger, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the East Rockaway Union Free School District (“respondent”) denying her child (the “student”) transportation to a nonpublic school for the 2021-2022 school year.  The appeal must be dismissed.

Petitioner and the student reside within respondent’s school district.  In May 2021, petitioner withdrew the student from respondent’s elementary school and enrolled her in a nonpublic school.  Petitioner thereafter requested transportation to and from the nonpublic school.  By letter dated July 22, 2021, respondent’s assistant superintendent for finance and operations denied petitioner’s request because the distance between petitioner’s residence and the nonpublic school was less than two miles.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 3, 2021. 

Petitioner argues that the student is entitled to transportation because the route the student must walk to the nonpublic school is hazardous.  She requests a determination that the student is entitled to transportation to the nonpublic school for the 2021-2022 school year.

Respondent asserts that the petition must be dismissed as untimely. On the merits, respondent contends that it has no legal obligation to provide transportation because the voters of the district have not approved transportation for students who reside less than two miles from the school which they attend.  Respondent further indicates that the route the student must walk is not classified by the district as a child safety zone.

Pursuant to Education Law § 3635 (1), a school district must provide transportation to children who reside within the district and attend nonpublic schools, provided that the distance between the child’s home and his or her nonpublic school is within the statutorily prescribed limits (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).  Specifically, a board must provide transportation for all children attending kindergarten through grade 8 whose home and school are between 2 and 15 miles apart, as well as all children attending grades 9 through 12 whose home and school are between 3 and 15 miles apart (Education Law § 3635 [1] [a]).  A school district may provide transportation for a lesser or greater distance only upon approval by the voters of the district (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).  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). 

Respondent acted reasonably in denying petitioner’s request for transportation.  Petitioner admits that she and the student reside less than two miles from the nonpublic school.  She does not assert that voters have approved transportation for a lesser distance or that respondent has established a child safety zone on the route between her residence and the nonpublic school.[1]  To the extent petitioner argues that respondent may nevertheless consider hazards along the student’s route to school, New York courts have held otherwise (Appeal of Famolari, 60 Ed Dept Rep, Decision No. 17,987 [citing and discussing legal authority]).  Accordingly, petitioner has failed to establish a clear legal right to her requested relief.

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

THE APPEAL IS DISMISSED.

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