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Decision No. 16,362

Appeal of GINA ANGELL, on behalf of her daughter GIANA, from action of the New York City Department of Education regarding transportation.

Decision No. 16,362

(June 28, 2012)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Gloria M. Yi, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the decision of the New York City Department of Education (“respondent”) to deny her request for transportation.  The appeal must be dismissed.

Petitioner’s daughter attends third grade at P.S. 108 (“school”) in the Bronx, New York.  Respondent’s transportation policy (Chancellor’s regulation A-801) provides free transportation, either by school bus or public transit, to students in grades three through six who live one mile or more from the school they attend.  Students in those grades residing one-half mile or more but less than one mile from school are eligible for a half-fare Metro Card for public transportation.  Parents may seek a variance based on hazardous conditions along the student’s walking route to school or to a bus stop.

On or about March 21, 2011, while Giana was in second grade, petitioner applied for a transportation variance based on “distance disagreement” and claiming the existence of hazardous conditions.  By letter dated April 4, 2011, respondent’s Office of Pupil Transportation (“OPT”), notified petitioner that Giana was eligible for school bus transportation based on grade and distance, apparently with respect to the then-current 2010-2011 school year while attending second grade.  However, petitioner was advised that “[s]ince the variance request is for next school year [,] parents need to file a hazard variance request by June 2011 in which specific locations for hazards should be indicated.”  Petitioner did not file a subsequent variance request for 2011-2012.  Nevertheless, by letter dated May 17, 2011, petitioner was informed that a site visit was completed and “no hazards were found on [Giana’s] route to school or public transportation.”  Consequently, Giana was not eligible for school bus transportation.    This appeal ensued.

Petitioner contends that her request for school bus transportation should have been granted because the route between her home and the public transit stop is unsafe.  Petitioner also claims that Giana is too young to take public transportation and requests that transportation be provided to Giana in accordance with OPT’s April 4, 2011 letter.

Respondent asserts that its determination was not arbitrary and capricious.  Respondent contends that petitioner resides .7 miles from school and, therefore, does not qualify for school bus transportation under Chancellor’s Regulation A-801.  Respondent maintains that petitioner failed to submit a variance request for the 2011-2012 school year identifying the specific nature and locations of alleged hazardous conditions, but despite this, it properly determined that the route between petitioner’s home and the public transit stop is not hazardous.  Respondent also maintains that eligibility for transportation can not be determined based on hazard.  Finally, respondent contends that petitioner cannot rely on OPT’s determination that Giana was entitled to transportation, as stated in its April 4, 2011 letter, because that letter relates to transportation for the 2010-2011 school year only.

A city school district may, but is not required to, provide transportation to students (Education Law §3635[1][c]).  Where such district elects to provide transportation, it must do so equally to all students in like circumstances (Education Law §3635[1][c]; SandsPoint Academy, et al. v. Bd. of Educ., 63 Misc 2d 276; Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891).  The Commissioner of Education has held that students in different grades are not in “like circumstances” and that city school districts may establish transportation policies that make distinctions by grade level (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Cassin, et al., 32 id. 373, Decision No. 12,859).

A board of education has broad discretion to determine how transportation is to be provided (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  Moreover, a board of education has both the responsibility and the authority to decide difficult questions in balancing the overall efficiency and economy of a transportation system against the convenience of individual students (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of A.P., 48 id. 380, Decision No. 15,891).

As noted, in accordance with Chancellor’s Regulation A-801, respondent provides free transportation by school bus or public transit to students in grades three through six who reside one mile or more from the school they attend.  Respondent determined that Giana resides .7 miles from P.S. 108 and, therefore is not entitled to school bus transportation, as petitioner requests, but is only entitled to a half-fare Metro Card.  Petitioner does not present any evidence that the distance between her home and the school is other than .7 miles.  Accordingly, I am unable to find that petitioner’s daughter qualifies for school bus transportation based on distance alone (seeAppeal of Kates, 49 Ed Dept Rep 138, Decision No. 15,980).

Nor am I able to find that respondent’s denial of petitioner’s request for a hazard variance was unreasonable.[1] Respondent maintains that it conducted a site visit along Giana’s walking route to school and to the public transit stop and found no hazardous conditions present.  Petitioner offers nothing but unsubstantiated allegations to the contrary In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  I find that petitioner has failed to meet her burden.

Finally, although OPT’s April 4, 2011 letter may have caused petitioner some confusion, the record indicates that it relates to Giana’s eligibility for transportation in 2010-2011 and does not provide any basis upon which to grant the relief requested.

THE APPEAL IS DISMISSED.

END OF FILE

[1] I note that respondent argues that Education Law does not base eligibility for transportation in individual cases on potential hazard and that there is no obligation imposed upon school districts to consider the relative hazards in the paths of different children (Pratt, et al. v. Robinson, et al., 39 NY2d 554; Matter of Studley, et al. v. Allen, et al., 24 AD2d 678).  Although respondent is correct, respondent has chosen to permit requests for a variance to its general transportation policy based on the existence of hazardous conditions (Chancellor’s Regulation A-801).  Consequently, respondent must comply with its own regulations.