Appeal of A.H., on behalf of her children, from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding transportation.

Decision No. 18,439

(July 15, 2024)

Volz & Vigliotta, PLLC, attorneys for respondent, David H. Arntsen and Sarah A. Gyimah, Esqs., of counsel

ROSA., Commissioner.--Petitioner challenges a determination of the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”) denying her two children (the “students”) transportation to a nonpublic school for the 2024-2025 school year.  The appeal must be dismissed.

Petitioner and the students reside in respondent’s district.  Respondent’s voters have authorized the district to provide transportation to students in grades 9-12 who live 1.5 miles or more from the school they legally attend.[1]

In February 2024, petitioner requested transportation for the students to a nonpublic school located outside of the district.  Respondent calculated the distance from petitioner’s address to the school to be 1.424 miles and denied the request.[2]  This appeal ensued.

Petitioner contends that the distance between her address and the nonpublic school is exactly 1.5 miles.  She reiterates her request for transportation for the students to the nonpublic school for the 2024-2025 school year.

Respondent asserts that the appeal should be dismissed as untimely.[3]  On the merits, respondent contends that the appeal must be dismissed because it acted reasonably in calculating the distance between petitioner’s home and the nonpublic school.

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).

Petitioner submits evidence that an internet-based mapping application identifies the distance between her address and the nonpublic school as 1.5 miles.  However, respondent obtained a measurement of 1.424 miles using its standard procedure for measuring distance—a Nitestar Distance Measuring Instrument manufactured by MH Corbin, which has an accuracy rate of three inches per mile.  Respondent also utilized a district vehicle specifically designated for this purpose.  Petitioner “has failed to explain why [her] map should be substituted for respondent’s calculation using its [customary] method” (Appeal of Radano, 59 Ed Dept Rep, Decision No. 17,745).  Moreover, while petitioner complains of respondent’s use of the “shortest distance” between the two locations, the Commissioner has previously endorsed this method of measurement (see e.g. Appeal of Kluge, 31 Ed Dept Rep 107, Decision No. 12,586 [“the proper route for purposes of measurement for transportation eligibility is the shortest distance along public roads between a residence and the school”]).  Thus, I find that respondent reasonably calculated the distance at issue and decline to disturb its determination (Appeals of Manders, 62 Ed Dept Rep, Decision No. 18,295).

To the extent petitioner alleges that the student’s walking path is unsafe, petitioner may request that respondent establish a child safety zone (Education Law § 3635-b; see also Appeal of Famolari, 60 Ed Dept Rep, Decision No. 17,987).

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

THE APPEAL IS DISMISSED. 

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