Appeal of MARK D. HARRIS, on behalf of his daughter NOA, from action of the New York City Department of Education regarding transportation.

Decision No. 17,177

(August 31, 2017)

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

BERLIN, Acting Commissioner.--Petitioner appeals a determination of the New York City Department of Education (“respondent” or “DOE”) denying his request for transportation for the 2016-2017 school year.  The appeal must be dismissed.

Petitioner’s daughter (“the student”) attended third grade at the Bais Yaakov Academy for Girls (“the school”) in Queens, New York during the 2016-2017 school year.  According to the record, the student previously took the bus to and from the school, as an existing school bus route covers the route between the student’s residence and the school.

Respondent’s transportation policy (“Chancellor’s regulation A-801”) provides that students in grades three through six are eligible for a half-fare MetroCard for public transportation if they reside one-half mile or more but less than one mile from their school, and free transportation if they reside one mile or more from their school.  According to the record, petitioner lives more than one-half mile but less than one mile from the school.  Parents or guardians may apply for exceptions, or variances, from the standards set forth in Chancellor’s Regulation A-801, which may be granted, on an annual basis, for limited reasons, including the presence of hazardous conditions along a student’s normal route to school.[1] 

On November 2, 2016, petitioner submitted a 2016-2017 Hazard Evaluation Request to respondent’s Office of Pupil Transportation (“OPT”) in which he identified several hazardous conditions in the general vicinity[2] of the student’s home and the school, including a railroad station and overpass, and seven hazardous intersections.[3]  In response to petitioner’s request, OPT conducted site visits of three locations[4] identified in petitioner’s request and assessed hazards using an internal procedure which utliizes a point system to assess certain hazards, such as traffic conditions, traffic signals and railway crossings on the routes.  In an affidavit submitted with this appeal, OPT’s chief of staff states that none of the identified locations reached the number of points required to qualify for a hazard determination and that “there were no other hazards identified on this route.”[5]

By letter dated November 28, 2016, OPT denied petitioner’s request, stating that the student was ineligible for full-fare transportation based on her grade and the distance between her residence and the school, and that a site visit was completed and no hazards were found on the student’s route to school.  However, OPT deemed the student eligible for half-fare reimbursement and indicated that a half-fare MetroCard could be requested.  This appeal ensued.  

Petitioner alleges that the “walking route recommended by the DOE” is unsafe and hazardous, that part of that route is on a road that is adjacent to railroad tracks, much of which is desolate, and that there is an existing school bus route that runs between the school and a location near his residence.  He asserts that his daughter previously took this school bus to and from school and the cost would be negligible if his daughter continued to ride that bus.  He requests that respondent be directed to issue a variance so that his daughter can receive transportation to and from school.

Respondent contends that petitioner failed to meet his burden to show that he is entitled to the relief requested.  Respondent further contends that its denial of petitioner’s request for a variance was not arbitrary or capricious.  Respondent requests that the appeal be dismissed in its entirety.

In a reply, petitioner asserts that the route attached to his denial letter was a walking path to the school via Cuthbert Road (“Cuthbert Road route”).  He claims that he was not provided with a copy of the route which respondent identified as the recommended route in its answer (the “Metropolitan Avenue route”) and that he did not have an opportunity to challenge that route.  He asserts that the Metropolitan Avenue route contains three intersections and that while OPT conducted a hazard evaluation of one of the intersections along the Metropolitan Avenue route, it did not conduct a hazard evaluation for the other two.

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 is challenging respondent’s denial of his request for school bus transportation, based on hazardous conditions, for the 2016-2017 school year.  The 2016-2017 school year has ended, and, in respondent’s district, variance requests are submitted annually (Appeal of Allen, 56 Ed Dept Rep, Decision No. 16,970; Appeal of Kravchenko, 56 id., Decision No. 16,941; Appeal of Abeido, 55 id., Decision No. 16,859).  Therefore, petitioner’s challenge to respondent’s denial of his 2016-2017 hazard variance request is moot.

While the appeal is moot, I am compelled to note that the record is unclear as to which route respondent used in its determination.  As noted above, petitioner submits the November 28, 2016 denial letter he received from respondent which refers to an attached map showing the Cuthbert Road route. 

Respondent also submits the November 28, 2016 denial letter.  The denial letter submitted by respondent includes the same map showing the Cuthbert Road route, but the map is crossed out and includes the following handwritten notation: “shortest path – do not recommend for use.”  The denial letter submitted by respondent also includes handwritten directions to the school and a second map that shows a walking path via Metropolitan Avenue.  According to OPT’s chief of staff, OPT recommended an alternate route, the Metropolitan Avenue route, which avoided many of the areas of concern that were identified in petitioner’s request and performed a site visit on November 21, 2016 to “verify that there were no hazards on the recommended route to school....” 

There is clearly a discrepancy in the record regarding which walking route was recommended by OPT.  Should petitioner or any other parent or guardian seek a hazard variance in the future, I remind DOE to ensure that any recommended routes are clearly communicated.

THE APPEAL IS DISMISSED.

END OF FILE