Appeal of ROBERT MCFEELEY, on behalf of his children MARIA, ROBERT and PATRICIA, from action of the New York City Department of Education regarding transportation.

Decision No. 16,598

(March 12, 2014)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Andrew J. Rauchberg, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the decision of the New York City Department of Education (“respondent” or “DOE”) to deny his request for transportation variances based on hazardous conditions. The appeal must be dismissed.

Petitioner is a resident in respondent’s district and is the parent of three children who attended St. Christopher’s School in Staten Island, New York during the 2012-2013 school year. Maria attended seventh grade while Robert and Patricia were in third grade. Petitioner’s children do not meet the distance requirement to be eligible for free school bus (“yellow bus”) service. According to the record, generally students who live between one-half mile and one mile from school are not entitled to full-fare transportation, including yellow bus service under respondent’s transportation policy (“Chancellor’s regulation A-801”). According to respondent, petitioner’s home is 0.802 miles from St. Christopher’s School. Respondent also states that students who reside between one-half mile and one mile from school may be entitled to a variance from Chancellor’s regulation A-801 due to, among other things, the presence of a hazardous condition and further that variances, if granted, may be made on an annual basis.

On or about September 5, 2012, petitioner submitted a hazard variance request for the 2012-2013 school year to respondent’s Office of Pupil Transportation (“OPT”). On his request form, petitioner identified Hylan Boulevard and Midland Avenue as a hazardous intersection and stated in a cover letter that his children “would have to cross Hylan Boulevard where numerous accidents have occurred” and referenced and/or included various newspaper articles from 2000 through 2012 which “detailed accounts of accidents ...

 

at the intersections where [his] children would have to cross.” Petitioner further asserted that “[i]t is unsafe for any child to cross these intersections no less a 3rd grader.”

Respondent states that OPT investigated the streets between petitioner’s home and St. Christopher’s School, including Hylan Boulevard, and determined that there is a safe walking path from petitioner’s home to the school and that no hazards exist on the route. OPT determined that the students could safely cross Hylan Boulevard at Lincoln Avenue, where there are traffic signals and school crosswalks.

By letters dated September 25, 2012, respondent denied petitioner’s request for a variance for each of his three children, stating that the children are ineligible for full-fare transportation based on grade and distance, that a site visit was completed and no hazards were found on the children’s route to school or public transportation, and that a half-fare MetroCard may be requested. This appeal ensued. Petitioner’s request for interim relief was denied on December 3, 2012.

Petitioner requests yellow bus service for his children based on hazardous conditions. Petitioner claims that “no school age child could safely cross Hylan Boulevard” and cites a lack of crossing guards and accidents that “send cars airborne.” To support this claim, petitioner relies on a “School Safety Engineering Project” report of the New York City Department of Transportation (“NYC DOT”) dated September 27, 2006 which includes documentation of the number of accidents at the intersections of Hylan Boulevard with Lincoln and Midland Avenues.

Respondent contends that DOE’s actions, including the denial of petitioner’s variance request, were neither arbitrary nor capricious.

Initially, I note that the petition includes as attachments several newspaper articles. It is well-settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Parris, 51 Ed Dept Rep, Decision No. 16,261; Appeal of Wachala, 49 id. 31, Decision No. 15,950). Therefore, I have not considered such articles for the veracity of their content.

The appeal must be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest

 

(Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). Petitioner sought a transportation variance for his children for the 2012-2013 school year. As noted, petitioner’s request for interim relief was denied and the school year has concluded. Consequently, the appeal is moot.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. 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]; Sands Point 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).

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 am unable to find that respondent’s denial of petitioner’s request for a variance based on a hazard was arbitrary, capricious, unreasonable, or an abuse of discretion. The record indicates that OPT investigated the streets between petitioner’s home and St. Christopher’s School, including Hylan Boulevard, and determined that there is a safe walking path from petitioner’s home to school and that there is no hazardous condition along the route that would warrant the issuance of a variance. The affidavit of OPT’s chief of staff indicates that respondent approved a walking route between petitioner’s home and the school and that petitioner’s children “can safely cross Hylan Boulevard at Lincoln Avenue, where there are traffic signals and school crosswalks.”

The 2006 NYC DOT report provided by petitioner includes New York State Department of Motor Vehicles data for the period 1998 through 2000 and New York City Police Department data for 2001 through 2004 indicating the occurrence of three and nine pedestrian accidents and zero and one school-related accidents, respectively, at the Hylan Boulevard – Lincoln Avenue intersection and five and nine pedestrian accidents and one and four school-related accidents, respectively, at the Hylan Boulevard – Midland Avenue intersection. The report also includes, among other things, a recommendation that a crossing guard be assigned to the Hylan Boulevard - Midland Avenue intersection. The only recommendation for the Hylan Boulevard – Lincoln Avenue intersection appears to have been to install curb extensions on the southwest corner. While petitioner disagrees with respondent’s position, he fails to refute respondent’s conclusion that the approved walking route permits petitioner’s children to safely cross Hylan Boulevard at Lincoln Avenue, where there are traffic signals and school crosswalks (see e.g., Appeals of Kates, Goodman and Martinez, 49 Ed Dept Rep 138, Decision No. 15,980). Accordingly, on this record, I find that petitioner has failed to meet his burden of proof.

THE APPEAL IS DISMISSED.

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