Appeal of FRANCIS MOLIGNANO and MARIANA KOEHLER, on behalf of their child, from action of the Board of Education of the Shelter Island Union Free School District regarding transportation.

Decision No. 18,450

(July 29, 2024)

Ingerman Smith, L.L.P., attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the determination of the Board of Education of the Shelter Island Union Free School District (“respondent”) that their child (the “student”) is not entitled to transportation to a nonpublic school.  The appeal must be dismissed. 

Petitioners and the student reside on Shelter Island.  They must travel by car and ferry to reach the nonpublic school the student attends.  In a letter dated November 13, 2023, respondent denied petitioners’ request for transportation to the nonpublic school because it is located more than 15 miles from the student’s residence.  This appeal ensued.  Petitioners’ request for interim relief was denied on December 15, 2023. 

Petitioners contend that the distance traveled by ferry should not be included in calculating the distance from their home to the nonpublic school because vehicles being transported thereto do not move while in transit.  They assert that, based on a measurement obtained using a vehicle odometer, their residence is 14.9 miles from the nonpublic school, which is within the 15-mile limitation imposed by Education Law § 3635 and board policy.

Respondent argues that the student is not entitled to transportation from his residence to the nonpublic school because the trip is longer 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.  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 Leslie, 63 Ed Dept Rep, Decision No. 18,355; 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 resources measuring distances to determine eligibility for transportation (Appeal of 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 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).

Petitioners implicitly concede that the distance between the student’s residence and the nonpublic school is greater than 15 miles when the length of the ferry ride is included in calculating the distance.  Therefore, the only question is whether respondent acted arbitrarily or capriciously by including the distance of the ferry ride in its calculation.  I find that it did not.

Education Law § 3635 (1) (a) states that transportation “shall be provided … up to a distance of fifteen miles, the distances in each case being measured by the nearest available route from home to school” (see also 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”]).  Here, the “route” that must be traversed includes travel over land and water.  Thus, respondent reasonably included the entire distance when calculating the distance between the student’s home and school (Matter of Pellegrino, 2 Ed Dept Rep, Decision No. 7,012 [holding that, where a student took multiple modes of transportation to school including walking, a train, and bus, it was appropriate to include the distance of all modes of transportation in arriving at the total distance]; see also Matter of Bermingham v Commissioner of Educ. of State of N.Y., 48 Misc 2d 1052 [Sup Ct, Albany County 1966]).

Respondent was not required to utilize an odometer to calculate this distance.  While petitioners quote guidance from the State Education Department deeming an odometer a “legally reasonable and sufficient” method, boards of education have “broad discretion ... to select points of measurement and measure the distances between them” (Appeal of Leslie, 63 Ed Dept Rep, Decision No. 18,355).  Thus, respondent’s utilization of mapping software, which is its practice, was appropriate (Appeal of Ruggiero, 59 Ed Dept Rep, Decision No. 17,837).  Moreover, while petitioners submit a photograph of a vehicle outside of the nonpublic school displaying an odometer reading of 14.9 miles, they submit no proof as to where the vehicle was located when they initiated this measurement (compare Appeal of Leslie, 63 Ed Dept Rep, Decision No. 18,355). 

Finally, to the extent respondent may have provided gratuitous transportation in prior school years, a district has no authority to make an exception to the eligibility requirements of Education Law § 3635 merely because it erroneously provided transportation to a child in the past (Appeal of Lachman, 56 Ed Dept Rep, Decision No. 17,039; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073). 

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

THE APPEAL IS DISMISSED.

END OF FILE