Appeal of GREGORY GALLENT, on behalf of his son DANIEL, from action of the New York City Department of Education regarding transportation.

Decision No. 17,751

(September 13, 2019)

Zachary W. Carter, Corporation Counsel of the City of New York, attorneys for respondent, Copatrick Thomas, Esq., of counsel

BERLIN., Interim Commissioner.--Petitioner appeals the decision of the New York City Department of Education (“respondent”) to deny his request for transportation on behalf of his son (“the student”).  The appeal must be dismissed.

Petitioner and the student reside within the City School District of the City of New York.  On or about December 17, 2018, petitioner requested a transportation variance from respondent’s Office of Pupil Transportation (“OPT”) due to alleged hazardous traffic conditions along the student’s route to his elementary school.  In a letter to petitioner dated January 17, 2019, OPT denied petitioner’s request for a hazard exception.  This appeal ensued.

Petitioner argues that respondent erroneously concluded that the student is ineligible for bus service due to the distance between his home and his school, and that respondent’s denial of his hazard exception was arbitrary and/or capricious.  Petitioner seeks a determination that the student is entitled to bus service because of the distance to his school and/or the existence of hazards along the student’s walking route.

Respondent argues that the appeal should be dismissed, inter alia, as moot.  Respondent further argues that its determination was neither arbitrary nor capricious, and that petitioner lacks standing to maintain this appeal on behalf of other similarly situated students and that the appeal is untimely.

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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).

Petitioner is challenging respondent’s denial of his request for a hazard variance for the 2018-2019 school year.  The 2018-2019 school year has ended, and in respondent’s district, variance requests are submitted annually (see Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of Harris, 57 id., Decision No. 17,177; Appeal of Allen, 56 id., Decision No. 16,970).  Therefore, petitioner’s challenge to respondent’s denial of his 2018-2019 variance request is moot.

Even if the appeal were not dismissed as moot, it would be dismissed on other grounds.  First, to the extent petitioner seeks to raise claims on behalf of others, the appeal must be dismissed for lack of standing.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

In the petition, petitioner alleges that he and “all similarly situated students at P.S. 24 and residing at [his address] are harmed by the arbitrary denial of bus service to their school.”  While not entirely clear, to the extent petitioner seeks to raise claims on behalf of students other than his son, he lacks standing to do so.

The appeal must also 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 Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 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 Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891).

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

First, petitioner has not proven that the student is eligible for bus transportation based upon the distance to the school.  According to the record, the student was in third grade during the 2018-2019 school year.  Chancellor’s regulation A-801 provides, in relevant part, that students in third grade are eligible for yellow bus service if they reside between 0.5 and 1.0 mile from school.  Using its software, respondent calculated the distance between the student’s home and his school to be 0.933 miles.

On appeal, petitioner submits a printout from Google Maps as evidence that the distance between his home and P.S. 32 is approximately one mile.[1]  However, petitioner has failed to explain why such map should be substituted for respondent’s calculation using its own software, or why the route calculated by respondent’s software is arbitrary, capricious or unreasonable (see Appeal of Xiang, 56 Ed Dept Rep, Decision No. 16,925; Appeal of Yavno, 55 id., Decision No. 16,884; Appeal of Zheng, 54 id., Decision No. 16,776).  Therefore, petitioner has failed to meet his burden of proof that the student is eligible for yellow bus service under Chancellor’s Regulation A-801.

Additionally, on this record, petitioner has not established that respondent’s denial of petitioner’s request for a variance based on hazard was arbitrary, capricious, unreasonable, or an abuse of discretion.  The record indicates that OPT conducted a hazard area evaluation of the path in question, which consisted of a site visit to the alleged hazards identified by petitioner as hazardous on his Hazard Evaluation Request (in this case, two intersections).  The investigator used a point system to determine whether hazards existed.  The investigator evaluated criteria including, but not limited to, the traffic conditions such as traffic volume and speed limits.  These conditions were assigned point values in accordance with OPT policy.  A form completed by the investigator indicates that, in this case, twelve points (or more) are required to qualify for a hazard exemption.  The record indicates that the alleged hazards, in this case traffic volume (two points) and intersection factors (four points), resulted in a total point value of six.  Therefore, respondent concluded that a hazard exception was not warranted under the circumstances.  In response, petitioner makes conclusory allegations that the intersections are unsafe.  Therefore, on this record, petitioner has not met his burden of proving that he is entitled to a hazard exception pursuant to respondent’s policy.  Additionally, OPT reviewed traffic accident data and determined that no significant history of pedestrian-related accidents have occurred at the intersections along the student’s route to his school.

Petitioner also indicates that the student’s school “has determined that parent drop off via cars is a safety hazard” and asserts that, because respondent denied his hazard exception request, he will be forced to drive the student to school, thus contributing to the problem of automobile drop-offs.  While I empathize with petitioner’s concerns, respondent has approved a walking path to school for the student.  Moreover, respondent has indicated that the student was eligible for a half-fare Metrocard.  Thus, respondent is not requiring petitioner to drive his son to school.

Finally, petitioner asserts that “there is room on [a] bus” to transport the student to school.  As stated above, where a city school 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 Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 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 Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891).

Petitioner provides no evidence to prove that other students who ride a bus (which presumably travels a route near petitioner’s residence) are in “like circumstances” to the student; i.e., that they are in a grade that is subject to the same distance limitations as the student pursuant to Chancellor’s regulation A-801.  Therefore, petitioner has failed to meet his burden of proof as to this claim (see Appeal of M.V., 59 Ed Dept Rep, Decision No. 17,677).

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

THE APPEAL IS DISMISSED.

END OF FILE