Appendix — Manbeck v. Katonah-Lewisboro School District (No. 08-116)

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APPENDIX A - OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT DATED AND DECIDED

FEBRUARY 11, 2008.

Courtney MANBECK, individually and on

behalf of all others similarly situated,

Plaintiff-Appellant,

Vv.

KATONAH-LEWISBORO SCHOOL

DISTRICT, Robert Lichtenfeld, school

superintendent, individually and in his official

capacity, Transportation Department and

James Minihan, Transportation Supervisor,

individually and in his official capacity,

Defendants-Appellees.

No. 06-3052-CV.

Feb. 11, 2008.

Appeal from an order of the United States District

Court for the Southern District of New York

(Conner, J.).

Alexandra T. Manbeck, Cross River, NY, for

Appellant.

Daniel L. Adams, Rutherford & Christie, LLP,

New York, NY, for Appellee.

2a

Present ROSEMARY S. POOLER, DEBRA

ANN LIVINGSTON, Circuit Judges, and LEWIS

A. KAPLAN, ™! District Judge.

FN1. Hon. Lewis A. Kaplan, of the United

States District Court for the Southern

District of New York, sitting by

designation.

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS

HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district

court is AFFIRMED.

Plaintiff appeals from an order of the United

States District Court for the Southern District of

New York (Conner, J.) granting defendants'

motion to dismiss under Fed.R.Civ.P. 12(b)(6).

We assume the parties’ familiarity with the facts,

proceedings below, and specification of issues for

review.

At the time suit was filed, plaintiff was not

entitled to a public education as a property

interest protected by the Due Process Clause, see

Goss v. Lopez, 419 U.S. 565, 574 (1975), because

3a

her fifth birthday was after December 1, 20035.

Property interests protected by procedural due

process “are not created by the Constitution.

Rather, they are created and their dimensions are

defined by existing rules or understandings that

stem from an independent source such as state

law-rules or understandings that secure certain

benefits and that support claims of entitlement to

those benefits.”"Bd. of Regents v. Roth, 408 U.S.

564, 577 (1972). To determine whether a person

has a legitimate claim to a benefit, “we look to the

statutes and regulations governing the

distribution of benefits." Kapps v. Wing, 404 F.3d

105, 113 (2d Cir.2005). The pertinent statute

provides that school boards are not required “to

admit a child who becomes five years of age after

the school year has commenced unless his

birthday occurs on or before the first of

December.”N.Y. Educ. Law § 3202(1). To the

extent that plaintiff continues to press a

substantive due process claim, we note that “[t]he

Fourteenth Amendment does not protect a public

education as a_ substantive fundamental

right.”"Handberry v. Thompson, 446 F.3d _ 335,

352 (2d Cir.2006).

New York Education Law § 3202(1) is

consistent with the Equal Protection Clause,

which does not require classes of people that are

“different in fact or opinion to be treated in law as

though they were the same.’Plyler v. Doe, 457

U.S. 202, 216 (1982) (quoting Tigner v. Texas,

4a

310 U.S. 141, 147 (1940)) (internal quotation

mark omitted). In considering the New York State

Legislature's decision to set December 1 as the

cutoff date for kindergarten admission, we are

mindful that “[a] legislature must have

substantial latitude to establish classifications

that roughly approximate the nature of the

problem perceived, that accommodate competing

concerns both public and private, and that

account for limitations on the practical ability of

the State to remedy every ill."/d. Moreover,

defendants' refusal to provide plaintiff with pubiic

transportation to the private school at which she

attended kindergarten did not violate the Equal

Protection Clause. The Legislature has rationally

determined that, although a school district in New

York must provide transportation “for all the

children residing within the schoo! district to and

from the school they legally attend, who are in

need of such transportation because of the

remoteness of the school to the child or for the

promotion of the best interest of such

children, "N.Y. Educ. Law § 3635(1)(a), it has no

obligation to transport a child “who is younger

than the age of entrance into the public schools

established by the school district in which that

child resides,’N.Y. Comp.Codes R. & Regs. tit.

8, § 125.9.

*2 We hav considered plaintiff's remaining

contentions and found them to be without merit.

Sa

For the foregoing reasons, we AFFIRM the

district court's judgment.

C.A.2 (N.Y.),2008.

Manbeck v. Katonah-Lewisboro School Dist.

Ship Copy, 2008 WL 376385 (C.A.2 (N.Y.))

APPENDIX B - OPINION OF THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK

Courtney MANBECK, individually ard on

behalf of all others similarly situated, Plaintiff,

Vv.

KATONAH-LEWISBORO SCHOOL DISTRICT,

Robert Lichtenfeld, School Superintendent,

individually and in his official capacity,

Transportation Department, and James Minthan,

Transportation Supervisor, individually and in his

official capacity, Defendants.

No. 05 Civ. 8017(WCC).

June 7, 2006.

WILLIAM C. CONNER, Senior District Judge.

This § 1983 action was brought on behalf of

Courtney Manbeck (“Courtney” or “plaintiff’)

and all others similarly situated, against

defendants Katonah-Lewisboro School District

(the “District”’), Robert Lichtenfeld, the District

superintendent, and James Minihan, the District

transportation supervisor. Plaintiff claims that

defendants violated her due srocess and equal

Ja

protection rights 1 ader the Fifth and Fourteenth

Amendments by denying her bus transportation

to a private kindergarten because she did not

meet the age requirement for transportation

established by the District. Plaintiff filed a motion

for a temporary restraining order and a

preliminary injunction on October 14, 2005. Oral

argument was heard before this Court on

November 9, 2005. By Opinion and Order dated

November 22, 2005, plaintiff's motion was denied.

Defendants then sought to dismiss the Complaint

under FED. R. CIV. P. 12(b)(6) for failure to

state a claim. Plaintiff thereafter amended her

Complaint to allege that New York Education

Law § 3202 is unconstitutional and to modify the

class of plaintiffs in this action to include students

in other school districts that interpret § 3202 in

the same manner as the District. As an answer

had not been served at that time, plaintiff was

permitted to amend her Complaint subject to

defendants' outstanding motion to dismiss. The

Amended Complaint adds as defendants all other

similarly situated school districts in New York

State. For the foregoing reasons, defendants'

motion is granted.

FN1. The New York State Attorney

General's Office was informed of the

Amended Complaint and permitted to

wntervene pursuant to 28 U.S.C. §2403(b).

They declined to do so. |

8a

BACKGROUND

The facts of this case are set forth extensively in

our previous opinion, familiarity with which is

presumed. See Manbeck v. Katonah-Lewisboro

Sch. Dist., 403 F.Supp.2d 281 (S.D.N.Y.2005).

DISCUSSION

I. Standard of Review

On a motion to dismiss pursuant to Rule

12(b)(6), a court must accept as true all of the

well pleaded facts and consider those facts in the

light most favorable to the plaintiff. See Scheuer

v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40

L.Ed.2d 90 (1974), overruled on other grounds,

Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012,

82 L.Ed.2d 139 (1984); Hertz Corp. v. City of

New York, 1 F.3d 121, 125 (2d Cir.1993); In re

AES Corp. Sec. Litig., 825 F.Supp. 578, 583

(S.D.N.Y.1993) (Conner, J.). The complaint need

only provide “a short and plain statement of cne

claim showing that the pleader is entitled to

relief.” Swierkiewicz v. Sorema N.A., 534 U.S.

506, 512, 514, 122 S.Ct. 992, 152 L.Ed.2d 1

(2002). Furthermore, in assessing the legal

sufficiency of a claim, the court may consider only

the facts alleged in the complaint and any

Ya

document attached as an exhibit to the complaint

or incorporated in it by reference. SeeFED. R.

CIV. P. 10(c); Dangler v. N.Y. City Off Track

Betting Corp., 193 F.3d 130, 138 (2d Cir.1999)

(citations omitted); De Jesus v. Sears, Roebuck

& Co., Inc., 87 F.3d 65, 69 (2d Cir.1996).

*276 On a motion to dismiss pursuant to Rule

12(b)(6)_ of the Federal Rules of Civil

Procedure, the issue is “whether the claimant is

entitled to offer evidence to support the claims.”

Scheuer, 416 U.S. at 236, 94 S.Ct. 1683. A

complaint should not be dismissed for failure to

state a claim “unless it appears beyond doubt that

the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief.”

Padavan v. United States, 82 F.3d 23, 26 (2d

Cir.1996) (quoting Hughes v. Rowe, 449 U.S. 5,

10, 101 S.Ct. 173, 66 L.Ed.2d 163(1980)).

Generally, “[c]onclusory allegations or legal

conclusions masquerading as factual conclusions

will not suffice to prevent a motion to dismiss.” 2

JAMES WM. MOORE ET AL., MOORE'S

FEDERAL PRACTICE § 12.34[1][b] (3d ed.1997);

see also Hirsch v. Arthur Andersen & Co., 72

F.3d 1085, 1088 (2d Cir.1995). Allegations that

are so conclusory that they fail to give notice of

the basic events and circumstances of which

plaintiff describes are insufficient as a matter of

law. See Martin v. New York State Dep't of

Mental Hygiene, 588 F.2d 371, 372 (2d

Cir.1978).

II. Fifth Amendment Claim

[1] Insofar as plaintiff claims a violation of her

Fifth Amendment rights, that claim must be

dismissed as plaintiff has “not named the United

States government or any agency or employee

thereof as a defendant in this matter.” See

Cassidy v. Scoppetta, 365 F.Supp.2d 283, 286

(E.D.N.Y.2005). The Fifth Amendment “ ‘governs

the conduct of the federal government and federal

employees, and does not regulate the activities of

state officials or state actors.’ "Jd. (quoting

Dawkins v. City of Utica, No. 93-CV-373, 1997

WL_176328, at *4 (N.D.N.Y. Apr.4, 1997)

(emphasis in original) (internal citations and

quotation marks omitted)).

Ill. Fourteenth Amendment Claims™™

FN2. To the extent plaintiff attempts to

assert that her substantive Due Process

rights were violated, her claims would fail.

While the Supreme Court has recognized

the protection of fundamental rights under

the Fourteenth Amendment in the context

of substantive due process and equal

protection, it is well established, however,

that there is no fundamental right to

lla

education. See e.g., Kadrmas uv.

Dickinson Pub. Sch., 487 U.S. 450, 458,

108 S.Ct. 2481, 101 L.Ed.2d 399 (1988).

Therefore, plaintiff cannot demonstrate a

fundamental right under either substantive

due process or equal protection. See

Mazevski v. Horseheads Cent. Sch.

Dist., 950 F.Supp. 69, 70 (W.D.N.Y.1997).

A. Procedural Due Process

[2]1{3][4] “A two-prong test applies to analyze

procedural due process claims. First, the

threshold issue is always whether the plaintiff

has a property or liberty interest protected by the

Constitution. Second, if a protected interest is

identified, a court must then consider whether the

government deprived the plaintiff of that interest

without due process.” Henderson v. New York,

423 F.Supp.2d 129, 145 (S.D.N.Y.2006)

(internal quotations omitted). The Due Process

Clause of the Fourteenth Amendment protects an

individual's property interests. See Bd._of

Regents of State Colls. v. Roth, 408 U.S. 564,

577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). “To

have a property interest in a benefit, a person

clearly must have more than an abstract need or

desire for it. He must have more than a unilateral

expectation of it. He must, instead, have a

legitimate claim of entitlement to it.” Jd. The

Constitution does not create property interests,

t2a

“[rjather they are created and their dimensions

are defined by existing rules or understandings

that stem from an independent source such as

state law.” Id.

[5] Plaintiff asserts that she has a property

interest in public education. In *277 support of

this assertion plaintiff directs this Court to

Article XI, § 1 of the New York State

Constitution and § 3202 of the New York

State Education Law. The New York State

Constitution provides that “[t]he legislature shall

provide for the maintenance and support of a

system of free common schools, wherein all the

children of this state may be educated.” N.Y.

CONST. art. XI, § 1. Section 3202(1) of the

New York Education Law states, “[a] person

over five and under twenty-one years of age who

has not received a high school diploma is entitled

to attend the public schools maintained in the

district in which such person resides without the

payment of tuition.” However, that same section

explicitly states, “(nJothing herein contained shall,

however, require a board of education to admit a

child who becomes five years of age after the

school year has commenced unless his birthday

occurs on or before the first of December.” N.Y.

EDUC. L. § 3202(1). Courtney turned five on

December 11, 2005, after the 2005-06 school year

commenced and after the December 1 deadline.

She therefore is not yet entitled to free public

education and therefore does not have a protected

l3a

property interest under New York State law.

As we stated in our prior opinion, plaintiff does

not have a_ property interest in public

transportation to her private kindergarten. See

Manbeck, 403 F.Supp.2d_ at 284-87. Since

plaintiff does not have a protected property

interest, we need not consider whether she was

denied due process.

FN3. Plaintiff, relying on Goss v. Lopez,

419 U.S. 565, 95 S.Ct. 729, 42 1..Ed.2d

725 (1975), asserts that the District's

policy results in a 465-day suspension from

public education. (Pl. Suppl. Mem. Opp.

Mot. Dismiss at 4.) However, in that case,

the students had a Croperty interest in

public education as defined by Ohio

statute. Here, as discussed, Courtney does

not have such an interest. Therefore, that

case 1S inapposite.

B. Equal Protection

{61{71[8] The Supreme Court has held that an

individual may raise an equal protection claim

alleging that he or she has been “intentionally

treated differently from others similarly situated

and that there is no rational basis for the

difference in treatment.” Vill. of Willowbrook v.

Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145

14a

L.Ed.2d 1060 (2000). However, “the Constitution

does not require things which are different in fact

or opinion to be treated in law as though they

were the same.” Plyler v. Doe, 457 U.S. 202, 216,

102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). The

determination of what is “different” and what is

“the same” lies with the state legislature. /d. In

this respect, the Supreme Court has stated that

the legislature must be afforded “substantial

latitude to establish the classifications that

roughly approximate the nature of the problem

perceived, that accommodate competing concerns

both public and private, and that account for

limitations on the practical ability of the State to

remedy every ill.” Jd. (emphasis added). “In

applying the Equal Protection Clause to most

forms of state action, we thus seek only the

assurance that the classification at issue bears

some fair relationship to a legitimate public

purpose.” Jd. Under this review, “a statute is

presumed constitutional, and ‘[t] he burden is on

the one attacking the legislative arrangement to

negative every conceivable basis which might

support it.’ "Heller v. Doe, 509 U.S. 312, 320,

113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (quoting

Lehnhausen v. Lake Shore Auto Parts Co.,

410 U.S. 356, 364, 93 S.Ct. 1001, 35 L.Ed.2d 351

(1973)).

Plaintiff asserts that because she was born in

December 2000, she has been denied the right to

a kindergarten education and bus transportation

1Sa

to an alternate private school unlike those

children born between*278 January 1, 2000 and

November 30, 2000. Plaintiff attempts to

overcome the statute's presumed constitutionality

by arguing that other districts in New York,

namely the New York City School District,

Yonkers School District and Somers School

District, admit into kindergarten those students

attaining five years of age between December 1

and December 31. In light of this, plaintiff argues

that there can be no rational basis for the District

to use the earlier December 1 date because other

districts and private schools use the later date

without any serious consequences.

[9] Plaintiff has not succeeded in rebutting the

statute's presumed constitutionality by merely

pointing out different age-based admissions

deadlines among school districts. The defendants

need not “ ‘actually articulate at any time the

purpose or rationale supporting its classification.’

"Heller, 509 U.S. at 320, 113 S.Ct. 2637 (quoting

Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct.

2326, 120 L.Ed.2d 1 (1992)). Indeed, the

legislature is under no obligation to produce

evidence to sustain the rational or purpose of a

statutory classification. See id. at 320,113 S.Ct.

2637 (citing F.C.C. v. Beach Commc'ns, 508

U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211

(1993)). Moreover, the classifications created by

the age cut-off “must be upheld against an equal

protection challenge if there is any reasonably

l6a

conceivable state of facts that could provide a

rational basis for the classification.” Jd. at

320,113 S.Ct. 2637.

As already indicated, New York State

Education Law § 3202 articulates the standard

for those who are entitled to free appropriate

public education. The statute explicitly states that

it does not require a district to admit a child who

turns five after the school year begins unless the

child turns five before December 1. The New York

State Legislature, under Article 8 of N.Y.C.R.R. §

125.9, has determined that the age of attendance

shall be determined by the district in which the

student resides. Therefore, the Legislature has

left to the discretion of the districts when, either

on or after December 1, they will establish the

admission deadline for kindergarten.

Even if we were to find that plaintiff has

presented sufficient evidence to rebut the

presumption of constitutionality, which she has

not, defendants have demonstrated a rational

basis for the age distinctions. See, e.g., Lewitas v.

Ossining Union Free Sch. Dist., 10 Misc.3d

1059, 809 N.Y.S.2d 482 (N.Y. Sup.Ct.

Westchester Cty.2005); Isquith v. Levitt, 137

N.Y.S.2d 493 (Sup.Ct. Kings Cty.1954). In

consideration of the substantial deference

afforded to legislative statutes and decisions, we

find that the administrative and educational

17a

interests served by the age distinction provide a

rational basis. Administratively, the state and

various school districts must set an age cut-off

date, and any date will inevitably create

distinctions and classifications. However, these

classifications are necessary to address legitimate

educational concerns presented by children below

the age of admission as they may perform at lower

levels and thereby slow classroom proceedings or

affect the safety of transportation. The

classification defendants have established, at the

‘east, “roughly approximate[s] the nature of the

problem perceived.” Plyler, 457 U.S. at 216, 102

S.Ct. 2382. Without such specific mandates, each

child's request to attend public school and/or

receive bus transportation would have to be

reviewed on a case-by-case basis. These broader

provisions “account for limitations on the practical

ability of the State to remedy every ill.” Id. The

distinction may also be in place to permit the

District to delay the costs of educating *279 and

transporting these children for a year. The

District is in the best position to determine its

budgetary considerations, and its determination

to allocate its funds in this manner is rational.

The Court holds that the age distinctions created

by New York Education Law § 2302 and 8

N.¥Y.C.R.R. § 125.9 serve important

administrative, educational and financial

interests and thus do not violate the equal

protection clause of the Fourteenth Amendment.

| 8a

IV. Claims Under the Civil Rights Act

The Amended Complaint, in addition to alleging

causes of action based on violations of the Fifth

and Fourteenth Amendments, also alleges causcs

of actions under 42 U.S.C. §§ 1981, 1983 and

1985.

[10}Section 1983 prevents a person “who, under

color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws...."42 U.S.C. § 1983. “The

first inquiry in any § 1983 suit, therefore, is

whether the plaintiff has been deprived of a right

‘secured by the Constitution and laws.’ "Baker v.

McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 61

L.Ed.2d 433 (i979). “It is axiomatic that a

successful § 1983 claim requires more than a

showing that one has been wronged at the hands

of a state or municipal official. Rather, a plaintiff

must allege that he has been deprived of some

right secured by federal statute or the United

States Constitution.” Eastway Constr. Corp. v.

City of New York, 762 F.2d 243, 249 (2d

Cir.1985). As stated above, plaintiff cannot

demonstrate that she was denied a right secured

under the Constitution. Therefore, her § 1983

19a

claim must fail. See Baker, 443 U.S. at 146-47,

99 S.Ct. 2689 (holding that “{hjaving been

deprived of no rights secured under the United

States Constitution, respondent had no claim

cognizable under § 1983’).

[11}Section 1981 “prohibits discrimination that

infects the legal process in ways that prevent one

from enforcing contract rights, by reason of his or

her race, [and it] covers ... efforts to impede access

to the courts or obstruct nonjudicial methods of

adjudicating disputes about the force of binding

obligations.” Mian v. Donaldson, Lufkin &

Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d

Cir.1993). A § 1981 claim requires plaintiff to

allege: (1) that he is a member of a racial

minority; (2) that defendants had an intent to

discriminate against him on the basis of race; and

(3) that the discrimination concerned one or more

of the activities enumerated in the statute,

namely to make and enforce contracts, sue and be

sued, give evidence, etc. See id. To survive a

motion to dismiss, plaintiff's complaint must

assert “that the defendant(s'] acts were

purposefully discriminatory ... and racially

motivated.” Albert v. Carovano, 851 F.2d 561,

571-72 (2d Cir.1988) (en banc). The Amended

Complaint is devoid of any assertions regarding

racial discrimination. Indeed, the Amended

Complaint fails even to mention plaintiff's race.

Accordingly, no § 1981 action can stand.

20a

{12}{13] For similar reasons, plaintiffs § 1985

cause of action alsois defective. Narrower in scope

than 1983, see Blankman v. County_of

Nassau, 819 F.Supp. 198, 205 (E.D.N.Y.1993),

under § 1985(3)*"**280 a plaintiff must plead “

‘(1) a conspiracy; (2) for the purpose of depriving,

either directly or indirectly, any person or class of

persons of equal protection of the laws, or of equal

privileges and immunities under the laws; (3) an

act in furtherance of the conspiracy; (4) whereby

a person is either injured in his person or property

or deprived of any right of the citizens of the

United States.’” Fox v. City of New York, No. 03

Civ. 2268, 2004 WL 856299, at *9 (S.D.N.Y.

Apr. 20, 2004) (quoting Mian, 7 F.3d _ at

1087-88). “Furthermore, the conspiracy must also

be motivated by ‘some racial or perhaps otherwise

class-based, invidious discriminatory animus

behind theconspirators' action.’” Mian, 7 F.3d at

1088 (quoting United Bhd. of Carpenters,

Local 610 v. Scott, 463 U.S. 825, 829, 103 S.Ct.

3352, 77 L.Ed.2d 1049 (1983)). “A plaintiff states

a viable cause of action under § 1985 [excepting

clause 1 of § 1985(2)] only by alleging a

deprivation of his rights on account of his

membership in a particular class of individuals.”

Zemsky v. City of New York, 821 F.2d 148, 151

(2d Cir.1987) (modification in original). Here,

plaintiff asserts that she was deprived of

education and transportation based on her

membership in a class of plaintiffs born in

December of each year. However, as discussed,

plaintiff cannot demonstrate that she was

2\a

deprived of a right secured by statute or the

Constitution. Although plaintiff alleges that the

defendants conspired to deny her education, she

has failed to allege an improper motivation for

such a conspiracy. Therefore, plaintiffs § 1985

claim must fail.

FN4. The other sections of 1985 are

irrelevant to this case. Section 1] addresses

conspiracies to interfere with civil mghts by

preventing an officer from performing his

duties and section 2 addresses obstructing

justice through intimidation of a party,

witness or juror.

CONCLUSION

For all of the foregoing reasons, the motion of

defendants Katonah-Lewisboro School District,

Robert Lichtenfeld, and James Minihan is

granted, and the action is dismissed in its entirety

with prejudice.

SO ORDERED.

S.D.N.Y.,2006.

Manbeck v. Katonah-Lewisboro Schoo! Dist.

435 F.Supp.2d 273, 211 Ed. Law Rep. 165

22a

APPENDIX C-NEW YORK EDUCATION LAW

§ 3202. Public schools free to resident pupils;

tuition from nonresident pupils

1. A person over five and under twenty-one years

of age who has not received a high school diploma

is entitled to attend the public schools maintained

in the district in which such person resides

without the payment of tuition. Provided further

that such person may continue to attend the

public school in such district in the same manner,

if temporarily residing outside the boundaries of

the district when relocation to such temporary

residence is a consequence of such person's parent

or person in parental relationship being called to

active military duty, other than training.

Notwithstanding any other provision of law to the

contrary, the school district shall not be required

to provide transportation between a temporary

residence located outside of the school district and

the school the child attends. A veteran of any age

who shall have served as a member of the armed

forces of the United States and who shall have

been discharged therefrom under conditions other

than dishonorable, may attend any of the public

schools of the state upon conditions prescribed by

the board of education, and such veterans shall be

included in the pupil count for state aid purposes.

A nonveteran under twenty-one years of age who

has received a high school diploma shall be

permitted to attend classes in the schools of the

district in which such person resides or in a school

of a board of cooperative educational services

upon payment of tuition under such terms and

conditions as shall be established in regulations

promulgated by the commissioner; provided,

however, that a school district may waive the

payment of tuition for such nonveteran, but in

any case such a nonveteran who has received a

high school diploma shall not be counted for any

state aid purposes. Nothing herein contained

shall, however, require a board of education to

admit a child who becomes five years of age after

the school year has commenced unless his

birthday occurs on or before the first of December.

24a

APPENDIX D- NEW YORK EDUCATION LAW

§ 3635. Transportation

1. a. Sufficient transportation facilities (including

the operation and maintenance of motor vehicles)

shall be provided by the school district for all the

children residing within the school district to and

from the school they legally attend, who are in

need of such transportation because of the

remoteness of the school to the child or for the

promotion of the best interest of such children.

Such transportation shall be provided for all

children attending grades kindergarten through

eight who live more than two miles from the school

which they legally attend and for all children

attending grades nine through twelve who live

more than three miles from the school which they

legally attend and shall be provided for each such

child up to a distance of fifteen miles, the distances

in each case being measured by the nearest

available route from home to school. The cost of

providing such transportation between two or

three miles, as the case may be, and fifteen miles

shall be considered for the purposes of this chapter

to be a charge upon the district and an ordinary

contingent expense of the district. Transportation

for a lesser distance than two miles in the case of

children attending grades kindergarten through

eight or three miles in the case of children

attending grades nine through twelve and for a

greater distance than fifteen miles may be

provided by the district, and, if provided, shall be

offered equally to all childrenin like circumstances

25a

residing in the district; provided, however, that

this requirement shall not apply to transportation

offered pursuant to section thirty-six hundred

thirty-five-b of this article.