Appeal of LORRAINE ABEIDO, on behalf of her daughter NADIA, from action of the New York City Department of Education regarding transportation.

Decision No. 16,859

(January 4, 2015)

Zachary W. Carter, Corporation Counsel, attorney for respondent, Serena Longley, Esq., of counsel

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

The record indicates that, during the 2012-2013 school year, petitioner’s daughter, Nadia, attended seventh grade at I.S. 228 David A. Broody (“school”).  On or about September 12, 2012, respondent’s Office of Pupil Transportation (“OPT”) received a “Distance Evaluation Request” from petitioner in which she sought full-fare transportation (such as yellow bus service) for Nadia.  By letter dated September 27, 2012, OPT determined that Nadia was ineligible for yellow bus service due to her grade level and failure to meet the distance requirement for that grade.  OPT determined that petitioner’s home was 1.471 miles from the school, which is less than the 1.5 miles required by Chancellor’s regulation A-801 §1(2.3) to entitle her to yellow bus transportation.  This appeal ensued.  Petitioner’s request for interim relief was denied on November 23, 2012.

Although the petition is not entirely clear, petitioner appears to contend that OPT’s distance calculation is erroneous.  Petitioner also contends that her daughter is entitled to a hazard variance based on “unsafe traffic, traffic control conditions and dangerous crossings” and because she has to pass the residences of three registered sex offenders on her way to school.  Petitioner maintains that it would not pose an undue hardship on respondent to provide Nadia with yellow bus transportation. 

Respondent contends that the appeal is untimely and that its determination is neither arbitrary nor capricious.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  OPT’s September 27, 2012 letter informed petitioner of her right to appeal its determination to the Commissioner of Education and specifically noted that such an appeal must be commenced within 30 days.  Petitioner failed to properly serve the instant appeal upon respondent until November 8, 2012.  Petitioner has not requested in her petition that the delay in bringing the appeal be excused, nor has she submitted a reply in response to respondent’s affirmative defense.  On this record, I find that the instant appeal is untimely and must be dismissed.

The appeal must also 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 is challenging respondent’s denial of her request for yellow bus transportation for the 2012-2013 school year.  As noted above, petitioner did not commence this appeal until November 8, 2012.  Her request for interim relief was denied shortly thereafter and the school year has ended.  In respondent’s district, transportation variance requests are submitted and decided annually (see Appeal of Nicotra, 52 Ed Dept Rep, Decision No. 16,378; Appeal of Colletta, 51 id., Decision No. 16,363; Appeal of Naranjo, 51 id., Decision No. 16,281).  In view of the fact that the 2012 – 2013 school year has concluded, the matter is moot.

Even if it were not dismissed on procedural grounds, the appeal 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 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).

A board of education may provide passes for transportation on public transit facilities where transportation can be provided in that manner (Appeal of Clancy, 37 Ed Dept Rep 280, Decision No. 13,859; Appeal of Lavin, 32 id. 249, Decision No. 12,821; Appeal of Kelley, 18 id. 507, Decision No. 9,943).  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).

Respondent’s decision to deny petitioner’s request for yellow bus service is consistent with the Education Law and respondent’s policies and regulations.  For students in grades seven through twelve, respondent’s policy provides for full-fare transportation only at distances greater than 1.5 miles.  While petitioner appears to argue that respondent’s distance calculation is erroneous, petitioner herself submits evidence with her petition indicating that the distance to Nadia’s school is less than 1.5 miles from her home.  Based on the record, respondent appropriately denied petitioner’s request for yellow bus service based on grade and distance. 

Finally, petitioner appears to claim for the first time in this appeal that she is entitled to a “hazard variance” because of traffic conditions and the proximity of sex offenders to Nadia’s route to school.  However, petitioner’s variance request to respondent was not based on hazard and her claim must be dismissed (see Appeal of Naranjo, 51 Ed Dept Rep, Decision No. 16,281).

In any case, petitioner has failed to prove that a variance is warranted on safety grounds.  As noted above, petitioner bears the burden of proof in this proceeding.  Petitioner asserts generally that Nadia is “younger than most of her cohort” and “needs the transportation for safety reasons,” including that Nadia’s route to school contains “unsafe traffic, traffic control conditions and dangerous crossings” and the presence of registered sex offenders.  However, other than internet printouts listing individuals described by petitioner as “registered sex offenders” who appear to reside in various locations in Brooklyn alleged by petitioner to be on Nadia’s route to school, petitioner’s claims are vague and lack specificity sufficient to establish her allegation.  In this case, the record indicates that, under respondent’s policy, Nadia is eligible for a half-fare MetroCard for public transit based on grade and distance. 

Petitioner has failed to meet her burden of proving that respondent’s denial of her request for yellow bus transportation was arbitrary or capricious, or unreasonable or an abuse of discretion (see, Appeal of O.E., 53 Ed Dept Rep, Decision No. 16,577; Appeal of McGarvey, 50 id., Decision No. 16,237).

THE APPEAL IS DISMISSED.

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