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Decision No. 14,619

Appeal of LEONARD A. FINKEL from action of the Board of Education of the City School District of the City of New York and Chancellor Harold O. Levy regarding transportation.

Decision No. 14,619

(August 3, 2001)

Michael D. Hess, Esq., Corporation Counsel of the City of New York, attorney for respondents, Celena R. Mayo, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a number of actions allegedly taken by respondent board of education and respondent Chancellor with respect to the provision of transportation to students of the City School District of the City of New York. The appeal must be dismissed.

Petitioner describes himself as a "citizen taxpayer" and alleges: (1) that the exemption provided in Education Law "3635 for city school districts violates the First, Ninth and Fourteenth Amendments of the U.S. Constitution; (2) that respondent board's provision of contract bus service to kindergarten through twelve grade students of the Michael J. Petrides School (Petrides School), while at the same time denying such service to nonpublic school students in like circumstances, violates Education Law "3635; (3) that the rules and regulations of respondent Chancellor regarding interborough and intercounty contract school bussing violate the First, Ninth and Fourteenth Amendments, the Individuals with Disabilities Education Act (IDEA), sections 503 and 504 of the Rehabilitation Act, and the U.S. Civil Rights Act, as amended; and (4) that respondent board, in violation of "applicable federal law," uses federally financed Metropolitan Transportation Authority (MTA) and franchised surface busses to the exclusion of other citizens, does not permit persons other than students to board the busses and, with one exception, does not charter surface busses for nonpublic school students.

Respondents deny petitioner's allegations and contend that they have acted lawfully and in conformity with the Constitution and all applicable local, State and federal law, ordinances and regulations. Respondents also allege that petitioner has failed to meet his burden of proof, and that petitioner lacks standing to bring this petition, both on his own behalf and as a class appeal.

At the outset, I note that petitioner has submitted a reply containing new allegations and material that should have been included in the original petition. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Hollister, 39 Ed Dept Rep 109, Decision No. 14,188; Appeal of Krantz, 38 id. 485, Decision No. 14,077; Appeal of Rampello, 37 id. 153, Decision No. 13,830). The rationale for this procedural rule is to ensure an orderly framing of the issues (Matter of a Handicapped Child, 24 Ed Dept Rep 41, Decision No. 11,308). Accordingly, while petitioner's reply has been accepted for filing, I have not considered those parts of it that contain new allegations and material that should have been included in the original petition, such as the "Report on the New York City Transit Authority Service for Students" issued by the Office of the Inspector General for the U.S. Department of Transportation. I note that even if I were to consider the Inspector General's Report, it has little, if any, relevance to the issues presented in this appeal because the Report is dated October 27, 1987 and relates to observations of bus operations made in November and December, 1986.

I find that the petition must be dismissed to the extent it seeks to initiate this appeal as a class action, with petitioner as its representative. Petitioner has failed to establish, pursuant to 8 NYCRR "275.2, that the class he seeks to represent is so numerous that joinder of all members is impracticable and that all questions of fact and law are common to members of the class (see, Appeal of Wayne, 39 Ed Dept Rep 518, Decision No. 14,298; Appeal of Prentice, 38 id. 736, Decision No. 14,130; Appeal of Lambert, 37 id. 599, Decision No. 13,937). Indeed, petitioner does not submit any allegations or proof with respect to such issue, other than to indicate in the caption of the appeal that petitioner brings the appeal as "a citizen taxpayer and all others in like circumstance on behalf of duly disenfranchised students in the area of contract bussing." This statement, alone, is insufficient to establish petitioner's status as a representative of such class.

I find that the petition must be dismissed for petitioner's failure to meet his burden of proof and because petitioner lacks standing to assert certain allegations. Furthermore, with respect to certain of petitioner's allegations, I find that I lack jurisdiction, or have determined that it would not be an appropriate forum to adjudicate.

Petitioner has the burden of establishing all the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Lilly, 39 Ed Dept Rep 601, Decision No. 14,324; Appeal of Trombley, 39 id. 115, Decision No. 14,189; Appeal of Pickreign, 28 id. 163, Decision No. 12,067). Furthermore, the burden is on petitioner to allege and prove facts upon which relief may be granted, not on the respondent to rebut conclusory allegations (Appeal of Keiling, 25 Ed Dept Rep 122, Decision No. 11,517; Matter of Lawson, 24 id. 132, Decision No. 11,343). 8 NYCRR "275.10 requires that the petition contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief; such statement must be sufficiently clear to advise the respondent of the nature of petitioner's claim and of the specific act or acts complained of. However, I find that the petition in this appeal consists of nothing more than broad, vague and conclusory allegations.

Petitioner has failed to meet his burden of proof pursuant to 8 NYCRR "275.10 because he does not cite the specific "exemption" contained in Education Law "3635 (presumably, petitioner refers to the exemption in "3635[1][b]), that he claims violates the First, Ninth and Fourteenth Amendments of the U.S Constitution, nor does petitioner provide any proof, or even explanation, of how this exemption allegedly violates such Amendments. Furthermore, an appeal to the Commissioner pursuant to Education Law "310 is not the proper forum for litigating novel issues of constitutional law (Appeal of Carlson, et al., 37 Ed Dept Rep 351, Decision No. 13,877; Appeal of O'Shea, 32 id. 514, Decision No. 12,904; Appeal of DeGroff, et al., 31 id. 332, Decision No. 12,657). Accordingly, this allegation must be dismissed.

Respondents contend that petitioner lacks standing because General Municipal Law "51 has been deemed by the courts to be inapplicable to boards of education. However, I find this argument to be inapplicable inasmuch as petitioner brings this appeal pursuant to Education Law "310, not General Business Law "51. Nevertheless, I find that petitioner lacks standing under Education Law "310 with respect to his allegation that respondent board of education is in violation of Education Law "3635 in providing contract bus service to students attending the Petrides School, while at the same time denying such service to nonpublic school students in like circumstances. An individual may not maintain an appeal pursuant to Education Law "310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil or property rights (Appeal of Carney, 39 Ed Dept Rep 255, Decision No. 14,229; Appeal of Larry B., 37 id. 632, Decision No. 13,944; Appeal of Craft and Dworkin, 36 id. 314, Decision No. 13,734). There is nothing in the record to establish that petitioner is either a nonpublic school student, or the parent or guardian of a nonpublic school student, who has been denied transportation by respondents. Therefore, petitioner has failed to establish that he is aggrieved and this allegation must be dismissed.

Petitioner does not cite the specific rules and regulations of the Chancellor regarding interborough and intercounty contract school bussing that he alleges violate the U.S. Constitution, the IDEA, the Rehabilitation Act and the Civil Rights Act or provide any proof, or even an explanation, as to how the rules and regulations violate the U.S. Constitution and these federal statutes. Accordingly, these allegations must be dismissed pursuant to 8 NYCRR "275.10 for petitioner's failure to meet his burden of proof. Moreover, as indicated above, to the extent petitioner's allegations raise issues of constitutional law, an appeal to the Commissioner is not an appropriate forum to adjudicate such issues. Likewise, an appeal to the Commissioner pursuant to Education Law "310 is not an appropriate forum to adjudicate petitioner's claims with respect to the Rehabilitation Act of 1973 (Appeal of Cochran, et al., 35 Ed Dept Rep 555, Decision No. 13,631) or the Civil Rights Act of 1964 (Appeal of Nicholaou-Guirguis, 32 Ed Dept Rep 439, Decision No. 12,879).

In addition, petitioner does not cite the "applicable federal law" he alleges respondent board has violated in using federally financed MTA and franchised surface busses to the exclusion of citizens and in failing to provide charter surface busses for nonpublic school students. Nor does petitioner provide any proof, or even explanation, of how respondent's actions allegedly violate such federal law. Therefore, this allegation must be dismissed for petitioner's failure to meet his burden of proof. I also find that petitioner lacks standing to assert that respondents have failed to provide charter surface busses for nonpublic school students, because there is nothing in the record to establish that petitioner is either a nonpublic school student who was denied such transportation, or the parent or guardian of such a student. Therefore, this allegation must also be dismissed for lack of standing.

Finally, to the extent petitioner alleges a violation of the IDEA, I find that petitioner lacks standing to assert such violation. Although not specifically or otherwise clearly pled, it appears from petitioner's pleadings that he alleges respondents have violated the IDEA by failing to provide integrated transportation of students with disabilities and students who do not have disabilities. However, there is nothing in the record which establishes, or even alleges, that petitioner is either a student with a disability, or the parent or guardian of a student with a disability. Heldman v. Sobol, 962 F2d 148, cited by petitioner in support of his contention that he has standing under the IDEA, is inapplicable to, and factually distinguishable from, this appeal because in Heldman the plaintiff-appellant was in fact the parent of a child with a disabling condition. Accordingly, petitioner has failed to establish that he is aggrieved by respondents' alleged actions and his allegations concerning a violation of the IDEA, in addition to being dismissed for petitioner's failure

to meet his burden of proof as discussed above, must also be dismissed for lack of standing.

THE APPEAL IS DISMISSED.

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