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Decision No. 14,218

Appeal of JAMES E. BURROWS, on behalf of DANIEL BURROWS, from action of the Board of Education of the Hilton Central School District regarding transportation.

Decision No. 14,218

(October 1, 1999)

Lynda M. VanCoske, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the Hilton Central School District ("respondent") regarding the assignment of a seat on the bus to his son, Daniel. The appeal must be dismissed.

Petitioner’s son Daniel attends respondent’s Northwood Elementary School. On April 23, 1998 Daniel was insulted and harassed by a group of students on the school bus. Upon petitioner’s complaint, the principal investigated the incident and determined that nine children were involved. Their level of involvement ranged from laughing to making highly inappropriate comments. The nine children admitted what they had done, apologized for their actions, and were disciplined.

Following this incident, petitioner removed his son from the bus until May 18, 1998. During this time, discussions ensued between petitioner, the district’s transportation director, school principal and superintendent regarding how to avoid teasing and harassment of Daniel on the bus. The Superintendent offered to let Daniel ride a different bus, to transfer Daniel to another elementary school, to have Daniel home-schooled or to assign him the first seat on the bus. Petitioner turned down each suggestion.

Earlier in the 1997-98 school year, in response to petitioner’s complaints that Daniel was teased as he got on and off the bus, the transportation director reconfigured the bus route so Daniel would be one of the first children on the bus and one of the last off of the bus. This was done so Daniel would not have to walk down the aisle of the bus and give the other children an opportunity to tease him. After the April 23 incident, respondent’s transportation department also installed a video camera on Daniel’s bus. Daniel resumed taking the bus on May 18, 1998, at which time the bus driver gave him an assigned seat in the sixth row. Petitioner objects to his son being given an assigned seat. After a number of written requests to move Daniel from the assigned seat were refused, petitioner commenced this appeal. Petitioner’s request for an interim order was denied on June 26, 1998.

By letter dated August 11, 1998, respondent’s attorney advised my Office of Counsel that petitioner and respondent had mutually agreed on a different bus route for the 1998-99 school year. Furthermore, respondent’s attorney stated that the district had no plan to assign Daniel a seat during the 1998-99 school year, although the district reserved the right to do so. By submission dated October 28, 1998, petitioner alleged that the district had not honored its agreement regarding the bus route. Petitioner, however, did not dispute that Daniel was no longer assigned a specific seat on the bus.

Petitioner contends that his son is required to sit in an assigned seat with a video camera aimed at him. He alleges that this policy is retaliatory, punitive and discriminatory. He also claims that the bus driver humiliated and harassed Daniel by assigning him a seat. Petitioner seeks an end to any restrictions on his son.

Respondent maintains that pursuant to its published "Rules of the Bus", it retains the right to assign a seat on the bus to any child for either disciplinary reasons or to protect a given child. Respondent contends that Daniel was assigned a seat for his own protection and denies that the driver humiliated or harassed Daniel. Furthermore, respondent denies that the video camera was directed at Daniel.

In addition, respondent contends that it has gone to great lengths to accommodate petitioner’s concerns. Respondent’s transportation department reconfigured the bus route so Daniel could board and depart the bus when fewer children were on it. It also installed a video camera on the bus to capture any future incidents on tape. Furthermore, the superintendent offered to let Daniel ride a different bus, to transfer his school, or to assign him the first seat on the bus.

Respondent also maintains a number of procedural defenses. It claims that the petition is untimely, that it is premature, that petitioner has failed to exhaust administrative remedies, that the appeal is moot and that petitioner has failed to state a clear and concise claim.

Before addressing the merits I will address several procedural issues. First, respondent maintains that the appeal must be dismissed as untimely. An appeal to the Commissioner must be brought within 30 days of the making of the decision or act complained of (8 NYCRR "275.16). It appears from the record that some type of agreement regarding Daniel’s transportation was reached on or about May 14, 1998. However, petitioner complains that this agreement was violated on May 18, 1998, when Daniel was forced to sit in the sixth row of the bus. Petitioner commenced this appeal on June 15, 1998, within 30 days of May 18, 1998. Accordingly, I will not dismiss the appeal as untimely.

Respondent maintains that this issue is moot. The Commissioner of Education will only decide matters in actual controversy and will not render a determination on a set of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 37 Ed Dept Rep 166, Decision No. 13,832; Appeal of Stopka, 34 id. 157, Decision No. 13,267). According to respondent’s attorney’s letter of August 11, 1998, the district had no plans to assign Daniel a seat on the bus for the 1998-99 school year. Thus, the "restrictions" contested by petitioner are no longer in place. Accordingly, the appeal is dismissed as moot.

Although this appeal is dismissed as moot, I am constrained to comment on respondent’s actions. In order to ensure student safety, a board of education must be free to regulate the conduct of students being transported by the district (see, e.g., Matter of Kearbey, 29 Ed Dept Rep 68, Decision No. 12,225; Matter of Roach, 19 id. 377, Decision No. 10,176). Furthermore, a board of education has discretion to determine how transportation will be provided (seee.g., Appeal of Byrne, et al., 34 Ed Dept Rep 389, Decision No. 13,355; Appeal of Polifka, 31 id. 61, Decision No. 12,569). Such determinations will not be overturned absent a showing that the board has acted illegally, or made a determination that is arbitrary, capricious or without a rational basis. Based on the record before me it appears that the determination of respondent to give petitioner’s son an assigned seat on the bus was reasonable.

Respondent’s rules clearly state that seats may be assigned on the bus for safety reasons. Following the April 23, 1998 incident, the bus driver assigned Daniel a seat in the sixth row so he could keep an eye on him, and so Daniel could be seen by the video camera. Thus, it appears from the record that there were valid safety reasons for the seat assignment. Furthermore, there is no evidence that the video camera was directed solely at Daniel. Rather, it appears the camera was installed to assist the driver in maintaining order generally. It also appears from viewing the videotape of bus rides on May 18 and 19, 1998 that the bus driver was appropriate in the manner in which he directed Daniel to his assigned seat. He did not intimidate the child, or draw undue attention to him as petitioner claims. There is nothing on the tape to indicate that any of the other children on the bus were even aware that Daniel had been assigned a seat. In sum, petitioner presents no evidence that the assigning of a seat to his son was done for discriminatory, retaliatory or punitive reasons.

In light of the foregoing, it is unnecessary for me to address the parties’ remaining contentions.