Appeal of MARK HOFFMAN, on behalf of his son Alexander, from action of the New York City Department of Education regarding transportation.

Decision No. 16,831

(October 1, 2015)

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondent, Neil Giovanatti, Esq., of counsel

ELIA, Commissioner.--Petitioner Petitioner appeals the refusal of the New York City Department of Education (“respondent” or “DOE”) to change his son’s bus route for the 2014-2015 school year.  The appeal must be dismissed.

Petitioner and his son (the “student”) reside in Bronx, New York, within respondent’s school district.  During the 2014-2015 school year, the student attended kindergarten at P.S. 24 and was provided with transportation through the contracted school bus (“yellow bus”) service.

Pursuant to respondent’s transportation policy in effect in the 2014-2015 school year, for students who are distance eligible and receive yellow bus service from their school, such bus route shall not exceed a total one way route length of “5 miles through all stop points” (Chancellor’s Regulation A-180).

Petitioner asserts that the student’s bus route is “close to 7 miles” and alleges that the route “ultimately creates a 40 minute ride” for his son.  Petitioner contacted respondent’s Office of Pupil Transportation (“OPT”) to request that the student’s bus route be changed to conform to the five mile rule.  By email dated November 19, 2014, OPT denied petitioner’s request to have the student’s bus route changed.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 23, 2015.

Petitioner objects to respondent’s denial of his request to change the student’s bus route.  He also alleges that the student’s bus route is still not in compliance with respondent’s “five mile rule.”

Respondent contends that its decision to not modify the student’s bus route according to petitioner’s specifications was not arbitrary or capricious because the bus route is in full compliance with respondent’s transportation policy. 

In his affirmation in opposition to petitioner’s request for interim relief, respondent’s attorney explains that, following the commencement of the instant appeal, OPT investigated and considered various modifications to the student’s bus route in an attempt to resolve the matter.  Respondent admits in its verified answer that, prior to the 2014-2015 winter vacation, the student’s route was longer than five miles because the assigned bus driver informed OPT that he deviated from the designated 3.8 mile bus route “because, despite being longer in distance, he believed that the path allowed him to complete the route more quickly.”  However, respondent asserts that in January 2015, a new bus driver was assigned to the student’s bus route who completed the route “by following a path that is 3.8 miles in distance.” 

In his reply, petitioner disputes respondent’s claims and alleges that he again measured the student’s bus route distance on January 26, 2015 by following the bus by car.  Petitioner alleges that the new bus driver followed a path that was 5.4 miles in length.  By affidavit submitted pursuant to 8 NYCRR §276.5, OPT’s Chief of Staff avers that he met with the bus company after reviewing petitioner’s reply, made modifications to the student’s bus route for the 2014-2015 school year and instructed the bus company to follow a designated 4.4 mile path, with the exception of minor traffic deviations such as car accidents, police activities or directions, or other traffic problems.  In addition, he avers that the bus company was provided with a GPS tracking device that remains on the student’s bus to ensure compliance with the designated route and respondent’s transportation policy.

I must first address petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.  I note that, to the extent petitioner’s reply responds to new information presented in respondent’s pleadings that did not exist at the time this appeal was commenced, I have considered such information contained in the reply.

By letter dated February 20, 2015, respondent’s attorney requested permission to submit an additional affidavit (“affidavit”) pursuant to §276.5 of the Commissioner’s regulations.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  A party seeking to file affidavits, exhibits and other supporting papers pursuant to this subdivision shall submit an application to the Office of Counsel, which shall state the reason(s) why such affidavits, exhibits or other supporting papers are necessary and include a copy of each such affidavit, exhibit or other supporting papers, together with proof of service of the application and the proposed exhibits, affidavits or other supporting papers upon all parties in accordance with §275.8(b) of the Commissioner’s regulations (8 NYCRR §276.5[a]). 

Respondent requested permission to submit the affidavit in response to allegations raised in petitioner’s reply regarding new information presented in respondent’s pleadings that did not exist at the time this appeal was commenced. Respondent also submits proof that the affidavit was served upon petitioner and petitioner did not object to such submission or allege any prejudice resulting therefrom (cf. Appeal of Torres, 45 Ed Dept Rep 170, Decision No. 15,292; Appeal of Boyd, 41 id. 266, Decision No. 14,682).  Furthermore, respondent is not attempting to add new claims or factual assertions that could have been asserted in earlier pleadings (cf. Appeal of O.M. and R.M., 52 Ed Dept Rep, Decision No. 16,414; Appeal of a Student Suspected of Having a Disability, 41 id. 329, Decision No. 14,702). Rather, the record indicates that both petitioner’s reply and respondent’s affidavit address new information presented in respondent’s pleadings that did not exist at the time this appeal was commenced.  Accordingly, I will consider respondent’s affidavit to the extent the allegations contained therein are responsive to the new material set forth in pleadings (see Appeal of a Student With a Disability, 49 Ed Dept Rep 439, Decision No. 16,075).

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). The record indicates that following the commencement of this appeal, respondent considered various alternatives and made modifications to petitioner’s son’s bus route during the 2014-2015 school year, which has concluded, to ensure that the bus route does not exceed five miles with the exception of minor traffic deviations as necessary. Consequently, no meaningful relief can be granted and the appeal must be dismissed as moot.

Even if the appeal were not dismissed as moot, it would be dismissed on the merits.  Initially, I note that a city school district may, but is not required to, provide transportation to students (Education Law §3635[1][c]) and where such district elects to provide transportation, it must do so equally for all students in like circumstances (Education Law §3635[1][c]; Sands Point Academy, et al. v. Bd. of Educ., 63 Misc2d 276; Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891).  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).

Establishing transportation routes and measuring distances are within respondent’s discretion, and 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).

A board of education is neither required to expend an unreasonable amount of time, effort or money in measuring distances for the purpose of determining eligibility for transportation, nor make such measurements with the accuracy of a professional survey (Appeal of Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Schwab, 47 id. 73, Decision No. 15,630; Appeal of Flemming, 43 id. 391, Decision No. 15,028).  It is reasonable and sufficient to use an automobile odometer to measure distance to determine eligibility (Appeal of Schlick, 40 Ed Dept Rep 207, Decision No. 14,462; Appeal of Adamitis, 38 id. 765, Decision No. 14,137; Appeal of Jagoda, 34 id. 154, Decision No. 13,266).

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).

As noted above, respondent has reviewed the student’s bus route on two separate occasions, considered alternatives, made modifications, and provided additional safeguards, such as a GPS tracking device to ensure compliance, in order to ensure that the student’s bus route is in compliance with Chancellor’s Regulation A-801.  Petitioner submits Google maps, GPS tracking reports and alleged pictures of his son’s bus at various stops along the bus route, which he contends establish that his son’s route violates respondents policy.  However, respondent maintains that it has corrected any deficiencies in the student’s bus route.  Petitioner fails to establish respondent’s obligation to modify the student’s bus route in accordance with his specifications and offers no explanation as to why his maps should be substituted for respondent’s calculation or standard measurement tool, or why the calculations and route used by respondent’s are arbitrary, capricious or unreasonable (see Appeal of Zheng, 54 Ed Dept Rep, Decision No. 16,776).  Accordingly, petitioner has failed to establish a clear legal right to the relief sought.

To the extent petitioner object to the amount of time the student spends on the bus, I note that neither the Education Law nor the Commissioner's regulations establish maximum time limits for the transportation of students.  One-way trips exceeding one and one-half hours have been upheld as not excessive (Appeal of DeVore, 36 Ed Dept Rep 326, Decision No. 13,738; Appeal of Polifka, 31 id. 61, Decision No. 12,569; Appeal of Capozza, 25 id. 15, Decision No. 11,482).

Based upon the foregoing, I conclude that respondent has not acted arbitrarily, capriciously or without a rational basis.  Therefore, even if this appeal were not dismissed as moot, it would be dismissed on the merits.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE