Appeal of SIOBHAN COOLEY, on behalf of her child, from action of the Board of Education of the City School District of the City of Lackawanna regarding transportation.

Decision No 18,233

(January 31, 2023)

Carl W. Morgan, PC, attorney for respondent, Carl W. Morgan, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Lackawanna (“respondent”) to deny her child (the “student”) transportation to a nonpublic school for the 2022-2023 school year.  The appeal must be dismissed.

Petitioner and the student reside in respondent’s district and the student attends a nonpublic school located outside of the district’s boundaries.  Pursuant to district policy, respondent provides transportation to students attending nonpublic schools located outside the district who live between 0.5 (kindergarten-fifth grade) or 1.5 (sixth-twelfth grade) miles and 10 miles from the school they attend.  Petitioner requested transportation for her child to the nonpublic school for the 2022-2023 school year.  The record reflects that the distance between petitioner’s residence and the nonpublic school is 10.6 miles.

By letter dated July 13, 2022, respondent denied petitioner’s request as the nonpublic school was located beyond the 10-mile limit.  This appeal ensued. 

Petitioner argues that respondent erroneously denied her transportation request because State law requires transportation to nonpublic schools located up to 15 miles from students’ homes.  She requests transportation to the nonpublic school for the 2022-2023 school year.

Respondent argues, among other contentions, that its decision was lawful and in accordance with district policy.  

A city school district may, but is not required to, provide transportation to district residents (Education Law § 3635 [1] [c]).  If it so elects, it must do so equally for all children in like circumstances (Education Law § 3635 [1] [c]; Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891). 

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).

Petitioner has failed to demonstrate a clear legal right to the relief requested.  While not obligated to do so, respondent has elected to provide transportation to nonpublic schools located outside of the district up to a maximum distance of 10 miles.  The parties do not dispute that petitioner’s residence is beyond the 10-mile limit.  Therefore, respondent’s decision to deny transportation cannot be considered arbitrary or capricious (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,761; Appeal of Staniszewski, 56 id., Decision No. 16,962).

While petitioner is correct that the general entitlement to transportation to a nonpublic school is 15 miles, this statutory provision does not apply to city school districts (Education Law § 3635 [1] [c] [“The foregoing provisions of this subdivision shall not require transportation to be provided for children residing within a city school district...”]). 

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE