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Decision No. 16,884

Appeal of MARIA YAVNO, on behalf of her daughter SOPHIA, from action of the New York City Department of Education regarding transportation.

Decision No. 16,884

(March 8, 2016)

Zachary W. Carter, Corporation Counsel, attorney for respondent, Elizabeth C. DeGori, Esq., of counsel

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

Petitioner’s daughter attends third grade at P.S. 50 Frank Hankinson (“school”) in Staten Island, 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 MetroCard 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.  Petitioner’s daughter previously received transportation under Chancellor’s regulation A-801 which also provides free transportation to students in kindergarten through grade two who live one-half mile or more from the school they attend.

Petitioner submitted a hazard evaluation request dated June 4, 2015 to respondent’s Office of Pupil Transportation (“OPT”) which indicated that the reason for the request was that there is no sidewalk along the route to school on Hylan Boulevard between Ithaca Street and Guyon Avenue.  In her cover letter, petitioner stated that “[i]n order to walk to the school we have to walk along Hylan Blvd. to Guyon [A]venue intersection to cross Hylan Blvd. which is a major road with a [sic] heavy traffic.”  Petitioner also stated that “[i]f there is no bus available Sophia’s elderly grandmother will have to walk with her to and from school” and that the absence of a sidewalk will make the journey “very dangerous” for them both particularly on “rainy and snowy days.”  Petitioner suggested in her cover letter that allowing her daughter to take the school bus that comes to their street to pick up the younger students attending P.S. 50 will not cause “extra detours or delays for the bus” and further, that there is “at least one more child” living on their street in the same situation as her daughter.  Petitioner also noted in the letter that “[w]e do indeed live less than a mile away from the school.”       

By letter dated September 21, 2015, in responding to petitioner’s request for an exception to DOE’s transportation eligibility requirements, OPT denied a hazard variance, stating that the reasons for the decision are that the student is ineligible for full-fare transportation based on grade and distance, that a site visit was completed and no hazards were found on the student’s route to school or public transportation, and that a half-fare MetroCard may be requested.  OPT’s denial letter included a reference to an enclosed map that provided an alternate route to the school which was a distance of 0.931 miles from petitioner’s home.  OPT also included a separate sheet explaining that it measures a student’s walking distance from home to the front entrance of the school “identified by latitude and longitude at a point perpendicular to the street centerline” and that the shortest walking path is measured using a street map called “Linear Integrated Ordered Network” (“LION”) that is maintained by the New York City Department of City Planning.  OPT further explained that LION is used by many New York City municipal departments and is used as DOE’s “official map” for distance determinations.  This appeal ensued.

Petitioner contends that the path to her daughter’s school along Hylan Boulevard is “extremely hazardous,” stating that in order to reach a sidewalk from Ithaca Street, “one must step into the roadway and walk for approximately 30-40 feet” making it extremely dangerous, particularly during winter when the road is covered with snow and ice.  To support her claim, petitioner provides three photos of the area in question.[1]  Petitioner further objects to the fact that the alternate route offered by DOE still does not qualify her daughter for school bus transportation.  However, noting that the school has more than one entrance, petitioner states that if the distance from her home to the school entrance that her daughter uses (which is not the same as the front entrance used by OPT in its distance calculation) is calculated, it will be exactly one mile according to Google Maps.  Petitioner also asserts that the offer of a half-fare MetroCard is “illogical” because in order to take a bus, they would have to walk through the same hazardous pathway along Hylan Boulevard.  Petitioner requests that I reverse DOE’s denial and allow her daughter to use school bus transportation for the years she is a student at P.S. 50.

Respondent contends that, in response to petitioner’s June 4, 2015 hazard evaluation request, it performed a site visit and found no hazards.  Respondent also contends that a site visit evaluation of the alternate route also found no hazards.  Respondent asserts that its denial letter included a reference to the “NYC Department of Transportation’s School Safety Map Locator” website to identify safe routes, showing traffic lights and a school crosswalk on Hylan Boulevard where students cross, as well as the location of speed reducers, and additional crosswalks.  Respondent argues that petitioner has not satisfied her burden to show that she is entitled to the relief requested and that respondent’s denial of her request was arbitrary and capricious.

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). 

Establishing transportation routes and measuring distances are within the discretion of the board of education (Appeal of Zheng, 54 Ed Dept Rep, Decision No. 16,776).  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).

A school district has broad discretion in selecting measurement points on school property for purposed of determining eligibility for transportation (Appeal of Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Flemming, 43 id. 391, Decision No. 15,028).  It may measure transportation distances from any part of the school or a resident’s property, so long as it does so fairly and consistently (Appeal of Welch, 48 Ed Dept Rep 176, Decision No. 15,829; Appeal of Flemming, 43 id. 391, Decision No. 15,028; Appeal of Porzio 42 id. 166, Decision No. 14,808).  Commissioner’s decisions have upheld measurements using a variety of reference points, such as a corner of the school property (Appeal of Canossa, et al., 37 Ed Dept Rep 456, Decision No 13,904), a side entrance of the school (Appeal of Mermelstein, et al., 30 Ed Dept Rep 119, Decision No. 12,406), the point at which the child first comes in contact with the grounds of the school he or she attends (Appeal of Pavony, et al., 27 Ed Dept Rep 295, Decision No. 11,951), a point at the entrance gate to the school grounds (Matter of Feldblum, 4 Ed Dept Rep 156, Decision No 7499) and the mid-point of the school (Matters of Silbert, et al. and Fitzpatrick, 1 Ed Dept Rep 283, Decision No 6607).  Furthermore, there is nothing improper about a district using multiple entrances as a means to measure distance, provided a uniform policy is adopted (Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636; (Matters of Silbert, et al. and Fitzpatrick, 1 id. 283, Decision No 6607). 

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 hazard variance was unreasonable.  Based on the record, it appears that respondent considered factors such as safety and efficiency and offered an alternate route whereby the student could walk safely to school.  Though petitioner disagrees with respondent’s decision, she offers no more than pictures of the original route along Hylan Boulevard between Ithaca Street and Guyon Avenue, and unsubstantiated allegations to refute respondent’s conclusions.  While I sympathize with petitioner’s concerns, on the record before me, I find that petitioner has failed to meet her burden of proof.

Additionally, in accordance with Chancellor’s regulation A-801 noted above, 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 Sophia resides 0.931 miles from P.S. 50 using its LION software, and, therefore, is not entitled to school bus transportation, as petitioner requests, but is only entitled to a half-fare MetroCard.  Petitioner submits a Google map to support her claim that the distance between her home and P.S. 50 is one mile.  However, she fails to explain why her map should be substituted for respondent’s LION calculation – DOE’s standard measurement tool - or why respondent’s use of the LION calculation or the route used is arbitrary, capricious or unreasonable (Appeal of Zheng, 54 Ed Dept Rep, Decision No. 16,776).

To the extent petitioner objects to respondent’s use of the school’s front entrance for distance measurement purposes, I find no merit to such claim.  In particular, petitioner contends that her daughter does not use the front entrance to the school and that, if distance was calculated from her residence to the entrance that her daughter does use, it would be exactly one mile.  However, Commissioner’s decisions have upheld measurement points in other similar situations, such as in Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636, where petitioner alleged that it was unreasonable to measure distance from an entrance that her son could not use because the door was “locked or never used for entrance into the school.”  Similarly, the decision in Appeal of Kadukara, 51 Ed Dept Rep, Decision No. 16,345, found that “the fact that students may not use the library door to enter the school does not, by itself, preclude respondent from utilizing this door as a measurement point for transportation purposes ....”  In Appeal of Kadukara, although petitioner referred to the library door as an “emergency exit,” there was nothing in the record permitting a determination on “whether, or to what extent, the door’s use is restricted” or whether “use of the door as an ‘entrance’ for purposes of [respondent’s] transportation policy is inconsistent with its general practice.”  Thus, in the decision in Appeal of Kadukara, the Commissioner was unable to conclude that respondent’s use of the library door as a measurement point was unreasonable or inappropriate.

Here, respondent’s chief of staff for OPT avers in an affidavit that the LION street map used to determine distances is one that they “use for each student” and which determines a route using the “school’s front entrance” as also noted in OPT’s “description of how we calculate distances” provided as part of respondent’s transportation policy.  Petitioner fails to refute these statements or to provide any further information showing that respondent’s transportation policy was unreasonable, inappropriate or inconsistent with its general practice.  Accordingly, I am also unable to find that petitioner’s daughter qualifies for transportation based on distance.

Having failed to establish a clear legal right to the relief sought, petitioner’s appeal must be dismissed.  In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] In addition to the photos submitted with the petition, petitioner stated that she was “attaching additional pictures that [she] was able to capture during morning rush hour” including exhibits E and F, respectively described as showing “a person walking along the road ... using part of the roadway” and “depicting the path towards the roadway which needs to be used to walk to the school, and you can clearly see how dangerous it is especially for little children.”  While respondent acknowledged these two additional pictures were attached as exhibits to the petition served upon it, they were not filed with my Office of Counsel.  Petitioner did not respond to a letter from my Office of Counsel on January 7, 2016 requesting these exhibits, thus they are not part of the record in this appeal.