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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2008

## Text

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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

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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,

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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

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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

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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

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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,

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“[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

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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

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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

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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.

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{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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1165%3A2. Public record. Not legal advice.