Appeal of COURTNEY LESLIE, on behalf of her children, from action of the Board of Education of the Florida Union Free School District regarding transportation.

Decision No. 18,355

(November 14, 2023)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, David S. Shaw, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges a determination of the Board of Education of the Florida Union Free School District (“respondent”) denying her children (the “students”) transportation to a nonpublic school for the 2023-2024 school year.  The appeal must be dismissed. 

Petitioner and the students reside in respondent’s district.  In March 2023, petitioner requested transportation for the students to the Montgomery Montessori School (“Montgomery”), a nonpublic school located outside of the district.  Respondent initially denied the request on the ground that Montgomery was more than 15 miles from its high school.  Respondent later realized, as petitioner had indicated, that the distance should have been measured from petitioner’s residence instead of the high school.  Respondent calculated this distance as 15.2 miles using the mapping software MapQuest.

Petitioner appealed this determination.  Over the next three months, respondent conducted four additional measurements of this distance as follows:

• A driver determined that the distance was 15.0 miles;[1]
• A second driver determined that the distance was 15.1 miles;
• Google Maps reported the distance as 15.1 miles; and
• At respondent’s request, the school business manager and superintendent drove the route and measured it at 15.1 miles.

By letter dated July 14, 2023, respondent denied petitioner’s appeal.  This appeal ensued.

Petitioner contends that the distance between her home and Montgomery is 15.0 miles.   She reiterates her request for transportation for the students to Montgomery for the 2023-2024 school year.

Respondent contends that the appeal must be dismissed because respondent acted reasonably in ultimately calculating the mileage between petitioner’s home to be more than 15 miles.

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).

A school district has broad discretion to select the points from which to measure distances to determine eligibility for transportation (Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of Welch, 48 id. 176, Decision No. 15,829).  A district may measure transportation distances from any part of a child’s school or residence, so long as it does so fairly and consistently (Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of Welch, 48 id. 176, Decision No. 15,829; Appeal of Flemming, 43 id. 391, Decision No. 15,028).  A board of education need not expend an unreasonable amount of time, effort, or money measuring distances to determine eligibility for transportation (Appeal of Chaim and Mintz, 57 Ed Dept Rep, Decision No. 17,257; Appeal of Welch, 48 id. 176, Decision No. 15,829; Appeal of Schwab, 47 id. 73, Decision No. 15,630).  The Commissioner has held that a district may use an automobile odometer to measure distances and determine eligibility (Appeal of Chaim and Mintz, 57 Ed Dept Rep, Decision No. 17,257; Appeal of Schlick, 40 id. 207, Decision No. 14,462; Appeal of Adamitis, 38 id. 765, Decision No. 14,137).

The Commissioner 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 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).

In support of her petition, petitioner submits video evidence that the distance between her home and Montgomery, calculated using a calibrated odometer, is exactly 15 miles.  Petitioner also submits photographs and information from several different websites.  Petitioner’s evidence is compelling and, if unrebutted, would satisfy her burden of proof.

However, I am constrained to find that respondent has demonstrated the rationality of its determination.  The distance between two buildings can vary based upon the exact point of measurement and the route driven.  This is reflected in the broad discretion afforded boards of education to select points of measurement and measure the distances between them (e.g., Appeal of M.P., 59 Ed Dep Rep, Decision No. 17,848; Appeal of Radano, 59 id., Decision No. 17,745).  As indicated above, respondent twice obtained a measurement of 15.1 miles using a school district vehicle specially designated for measuring distance.  This measurement was confirmed using mapping software.  Although a driver initially obtained a measurement of 15.0 miles, respondent reasonably discredited this calculation “since the driver was unable to accurately locate petitioner’s house.”  Thus, while extremely close, I find that respondent rationally concluded that the distance between petitioner’s home and Montgomery exceeded 15 miles (Appeals of Manders, 62 Ed Dept Rep, Decision No. 18,295).

However, to ensure uniformity and fairness, respondent must “ensure that [it] utilize[s] a standard procedure for measuring distance” going forward (Appeal of Manders, 62 Ed Dept Rep, Decision No. 18,295, see also Appeal of Ruggiero, 59 Ed Dept Rep, Decision No. 17,837]).  This is essential where, as here, the distance between a residence and a nonpublic school is extremely close to 15 miles (see Appeal of Juguett, 59 Ed Dept Rep, Decision No. 17,706 [district’s determination of distance of 15.03-15.07 miles upheld based upon its use of mapping software and a “calibrated odometer” for distances close to 15 miles]).

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

THE APPEAL IS DISMISSED. 

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