Appeal of KELISABETH DOMOND, on behalf of her child, from action of the Board of Education of the Valley Stream Union Free School District 13 regarding transportation.

Decision No. 18,553

(March 18, 2025)

Guercio & Guercio LLP, attorneys for respondent, Christopher W. Shishko, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Valley Stream Union Free School District 13 (“respondent”) that her child (the “student”) is not entitled to transportation to a nonpublic school.  The appeal must be dismissed.

In March 2024, petitioner requested transportation for the student to the Friends Academy, a nonpublic school, for the 2024-2025 school year.  Respondent denied the request because the distance between the student’s home and the nonpublic school is greater than 15 miles.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 14, 2024.

Petitioner acknowledges that the distance between the student’s residence and the nonpublic school is greater than 15 miles.  She nevertheless argues that the student is entitled to transportation because respondent provided it last year.  Petitioner further suggests that respondent could establish a centralized pick-up point to facilitate the student’s transportation to Friends Academy.

Respondent argues that the student is not entitled to transportation from her residence to the nonpublic school because the distance between them is greater 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).

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).  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).

On this record, I find that respondent did not act arbitrarily or capriciously in denying petitioner’s request for transportation.  The parties agree that the requested transportation exceeds 15 miles.  To the extent respondent provided gratuitous transportation during the 2023-2024 school year, a district has no authority to make an exception to the eligibility requirements of Education Law § 3635 merely because it erroneously provided transportation in the past (Appeal of Molignano and Koehler, 64 Ed Dept Rep, Decision No. 18,450; Appeal of Lachman, 56 id., Decision No. 17,039; Appeal of a Student with a Disability, 43 id. 524, Decision No. 15,073).

Additionally, respondent was not obligated to establish a centralized pick-up point for the 2024-2025 school year because it was not providing regular home-to-school transportation to and from Friends Academy (Appeal of Kyle, 53 Ed Dept Rep, Decision No. 16,626; Appeal of S.T., 48 id. 389, Decision No. 15,894; Appeal of Hughes, 48 id. 299, Decision No. 15,865).  While boards “may” establish such pick-up points if they have provided transportation to a nonpublic school “in at least one of the immediately preceding three school years,” (Education Law § 3635 [1] [b] [ii]) the Commissioner generally lacks authority to “compel such an exercise of discretion” (Appeal of L.L., 63 Ed Dept Rep, Decision No. 18,341; see also Appeal of M.M., 63 id., Decision No. 18,413; Appeal of Lee, 58 id., Decision No. 17,506).

THE APPEAL IS DISMISSED.

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