IN RE: (2006)

This matter was commenced by order to show cause which along with a cross-motion to vacate the temporary restraining order and deny the petition was made returnable before this Court (Motion Seq. No. 001 and # 002).   Thereafter, a hearing was conducted and on March 1, 2006 the parties submitted further memoranda of law and decision was reserved.

Petitioner, Sheryl-Anne Sastow as parent and natural guardian of an infant, a student at the North Shore Hebrew Academy (“Academy”) residing within respondent Plainview-Old Bethpage Central School District (“District”), seeks to enjoin the District from terminating the busing to the Academy previously provided by the District in accordance with the New York State Education Law § 3636.

Respondent asserts that according to the busing regulations for students residing within the District attending private schools situated without the geographical confines of the District, petitioner is not entitled to publicly funded transportation.

Preliminarily, the Court chose to accept jurisdiction over this action although petitioner could have appealed the District's adverse decision directly to the Commissioner of Education (Education Law § 3635(2);  Gundrum v. Ambach, 55 N.Y.2d 872, 448 N.Y.S.2d 466, 433 N.E.2d 531).

In addition, the Court declined petitioners's request to represent all similarly situated students of the Academy and petitioner proceeded in her individual capacity (Op. Comm. Ed. No. 14749ec (2001)).   In any event, this ruling will be applicable to those students in like circumstances.

Now, based upon the testimony of the several witnesses and the law as argued, the Court makes the following determination:

Until the District sent a letter canceling petitioner's busing on October 26, 2005, the District had been providing transportation to middle school students at the Academy by transporting them to the Academy campus located at 175 Community Drive in Great Neck, believing that these individuals, including petitioner, were actually educated at the same location.

In fact, that location housed the senior high school Academy students.   Once the middle school students arrived, the Academy took custody of the children and transported them via an Academy vehicle to the middle school campus at Old Mill Road, Great Neck.

According to the District, the cancellation did not effect those students living within 15 miles of the middle school campus as set forth in Education Law § 3635.

For the purposes of this decision the Court determines that the means by which the 15-mile distance is calibrated is as set forth by the District and defined by § 3635(1)(a) of the Education Law.   As measured, petitioner lives more than 15 miles from the middle school campus.

The District also investigated an alterative method to determine if any of its schools could serve as a central pick-up point if one of the middle school students resided within the 15-mile limit.   There were no eligible students to serve as an “anchor student” for this purpose (Education Law § 3635(1)(b)(i)).

The District argues that a student is not eligible for publically funded transportation beyond 15 miles from their home to the school he or she actually attends.   The District refers to language in the education law that uses the phrase “legally attends” and equates “legally” with “actually”, thus maintaining petitioner legally attends the middle school academy campus (e.g. Op. Comm. Ed. No. 13987 (1998)).

Petitioner contends that she legally attends the Hebrew Academy, which happens to have more than one campus with designations of elementary, middle and high school.   The high school campus is within the 15-mile limit.   Petitioner asserts that once she is dropped-off at the high school campus, she is transferred to the protection and control of the Academy.   Thus, the District, at that point, has no further interest as to which campus is the one where she is actually educated.

Initially, the Court finds whether or not petitioner attends some classes or school events at the high school is not determinative of this decision as too much variation can exist from one student to another or from year-to-year.   Petitioner is a middle school student receiving the academic curriculum that implies at the middle school campus.

If this matter were as the District advocates, this decision would simply rest on the opinion of the Commissioner of Education, No. 14442 (2000).   However, the seminal issue is, in a private academy setting with more than one campus, what school does petitioner legally attend.

The Court finds in favor of petitioner and that the definition of “legally attends” for the Academy is different than what a public school student legally attends within a district for purposes of providing transportation.

Education Law § 2(1) defines academy as an incorporated institution in secondary education (which includes middle school) as admitted by the Board of Regents.   Petitioner has established that:

a) The Academy operates preschool through high school courses under one corporate umbrella;

b) that the various age groups are interspersed among the buildings;

c) that there is one unified board supervising all age groups;

d) that the Academy is deemed one unified school by the parents, its students and by the Orthodox Jewish Community throughout the New York Metropolitan area;

e) that the Academy has one philosophical mission;

f) that there is a single business office which administers all business transactions for the entire Academy irrespective of grade level.

g) that fund raising events are joint;  and

h) that there is one joint academic calendar.

It is determined that, under the facts of this case, since the term legally attends with regard to a private academy with more than one campus does not have a controlling statutory or case law definition, petitioner legally attends the North Shore Hebrew Academy at the facility located at 175 Community Drive, Great Neck.   Once under the Academy's supervision, the District no longer maintains any interest in the exact location among the campuses where petitioner receives her instruction.

The practical concerns expressed by the District that the middle school students were causing the public school students on the bus route to arrive home at the end of the day later than generally expected by their parents or guardians is one to be addressed by the public and nonpublic school authorities with a view toward cooperation (e.g. Re Stickley, Op. Comm. Ed. No. 11963 (1988)).   The public school bus may be entitled to leave the Academy high school campus at a set time if the middle school students are late (see, Appeal of Hamilton, 21 Education Department Report, 30 (1981);  also see 27 Education Department Report, 328).

Accordingly, petitioner's application is granted and respondent's cross motion is denied.

JOHN M. GALASSO, J.