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Decision No. 14,227

Appeal of ANTOINETTE LUCENTE from action of the Board of Education of the City School District of the City of New York regarding transportation.

Decision No. 14,227

(October 13, 1999)

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Bryan D. Glass, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals from a determination of the Board of Education of the City School District of the City of New York ("respondent") eliminating certain school bus stops. The appeal must be dismissed.

Petitioner is the principal of Gateway Academy, a nonpublic school located in Staten Island within respondent's school district. She brings this appeal on behalf of herself and forty-seven students attending the Gateway Academy. Respondent provides transportation to students attending Gateway by contracting with a school bus company. Chancellor's Regulation A-801 provides, "where contract school bus service is provided, no bus route shall exceed a total one way route length of 5 miles through all stop points." Prior to the 1998-99 school year respondent permitted a variance to that limitation for both public and nonpublic schools located on Staten Island. Consequently, students residing more than five miles from the school they attended received bus stop-to-school transportation beyond the limit set forth in Chancellor's Regulation A-801.

By letter dated September 4, 1998, respondent's Office of Pupil Transportation ("OPT") informed petitioner that the variances establishing bus stops for students who lived more than five miles from Gateway Academy would be eliminated. The letter indicated that this decision was made in accordance with the limitation set forth in Chancellor's Regulation A-801. Instead, students living more than five miles from Gateway Academy were provided with full-fare cards for public transportation to drop off points closer to the school. Respondent provides shuttle service from the points where students disembark from public transportation to Gateway Academy.

By letter dated September 8, 1998, petitioner's assistant principal appealed OPT's decision to the Citywide Committee on Pupil Transportation ("CCPT") in accordance with respondent's administrative procedures. By letter dated September 15, 1998, CCPT denied the appeal, finding no compelling reason to alter the transportation respondent is providing. The letter indicated that individual parents having "specific and unique conditions they wish reviewed could bring it to the attention of OPT." This appeal ensued.

Petitioner appeals on behalf of herself and forty-seven students attending Gateway Academy. Petitioner asserts that the elimination of bus stops in excess of five miles from Gateway adversely affects certain of the students between five and ten years old, as they must travel on public transportation without supervision and disembark in an allegedly desolate area to await the connecting bus to school. Petitioner also claims Gateway will be adversely impacted by respondent's decision because the parents of the affected students have indicated that they will not continue to enroll their children in Gateway.

Respondent claims the appeal is untimely and must be dismissed on that basis. Respondent also asserts that its determination to eliminate the bus stops is in all respects proper.

I will first address respondent's procedural defense. Section 275.16 of the Commissioner's regulations requires that an appeal be initiated within 30 days of the action or decision complained of. The letter notifying petitioner of respondent's determination is dated September 15, 1998. However, petitioner verifies in her petition that she did not receive it until September 22, 1998. Respondent presents no evidence to the contrary. The petition was served upon respondent on October 21, 1998, within the thirty-day period. Therefore, I find the appeal timely.

However, petitioner lacks standing to maintain this appeal. Pursuant to Education Law "310, an individual may not maintain an appeal unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights. Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Morris, et al., 38 Ed Dept Rep 427, Decision No. 14,066). Petitioner has failed to demonstrate that respondent's actions caused any legal injury to her personally or to rights or property of the Gateway Academy. Neither boards of education nor towns can bring an action on the basis of an alleged legal injury to residents or taxpayers (Appeal of Smithtown, 28 Ed Dept Rep 337, Decision No. 12,128). Similarly, a private school official may not maintain an action based on alleged legal injuries to the students attending the school. A principal of a parochial school has no legal interest in whether children of respondent's district are provided with transportation and the failure of the district to provide transportation does not convert petitioner into an aggrieved person within the meaning of Education Law "310 (Appeal of Naughton, 72 St Dept Rep 53, Decision No. 5585). Petitioner asserts that she also brings the appeal on behalf of 47 students attending Gateway Academy. However, petitioner may not act as the students' representative in this instance. Pursuant to Education Law "3635(2), signed authorization by a student's parent is required to act as the student's representative with respect to the denial of a transportation request (Appeal of McColough, 2 Ed Dept Rep 81, Decision No. 6958). Petitioner has submitted no such authorization. For these reasons, petitioner lacks standing to maintain the appeal.

The appeal must also be dismissed on the merits. A city school district 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[a][c]; Sands Point Academy, et al. v. Bd. of Educ., New York City School District, 63 Misc 2d 276). However, a board of education has broad discretion to determine how such transportation will be provided (Sands Point Academy, et al. v. Bd. of Educ., New York City School District, supra; Appeal of Broad, 35 Ed Dept Rep 248, Decision No. 13,530; Appeal of Byrne, et al., 34 id. 389, Decision No. 13,355). In making that determination, a board of education has both the responsibility and authority to implement a transportation policy that balances the safety and convenience of individual pupils with overall economy and efficiency (Appeal of Broad, supra; Appeal of Polifka, 31 Ed Dept Rep 61, Decision No. 12,569; Appeal of Cunningham, 28 id. 10, Decision No. 12,012;). A board of education may provide passes for transportation on public transit facilities where transportation between home and school can be provided in that manner (Appeal of Clancy, 37 Ed Dept Rep 280, Decision No. 13,859). The Commissioner of Education will uphold a district's transportation determination, unless it is unreasonable or an abuse of discretion (Appeal of Byrne, et al., supra; Appeal of Polifka, supra; Appeal of Capozza, 25 Ed Dept Rep 15, Decision No. 11,482).

Moreover, a board of education may exercise its discretion when designating the location of bus stops, provided that the board uses care in exercising such discretion (See, Appeal of Warner, 37 Ed Dept Rep 469, Decision No. 13,907; Appeal of Deleewerk, 37 id. 453, Decision No. 13,903). In establishing school bus stops, a board of education must consider and balance considerations of pupil safety and convenience, routing efficiency and costs (Ossant v. Millard, 72 Misc. 2d 384; Appeal of Rheaume-Wellenc, 37 Ed Dept Rep 83, Decision No. 13,811; Appeal of Marsh, 36 Ed Dept Rep 134, Decision No. 13,680).

In the instant case, respondent acted to comply with the requirements set forth in Chancellor's Regulation A-801 (See, Sand Point Academy, et al. v. Bd. of Educ. New York City School District, supra). The record indicates that respondent carefully reviewed the safety concerns of petitioner and parents of students at the school. In making its determination, respondent considered that: (1) the level of difficulty would not exceed that experienced by other students attending schools of their choice throughout the borough; (2) the New York City Police Department had not classified any crossing along the students' routes as accident prone; (3) students would be provided with full fare Metrocards to use public transportation to reach designated pick up points; and (4) buses would be provided from the designated pick up points to assist children to and from the school.

In addition, respondent's determination did not single out the Gateway Academy, or nonpublic schools generally. In fact, respondent's determination to eliminate bus stop-to-school service beyond the five-mile limit set forth in Chancellor's Regulation A-801 involved at least five Staten Island schools, both public and private, and impacted both elementary and high school students. I note that respondent also has provided parents with the opportunity to appeal their individual cases to determine whether specific safety concerns exist for their children. This consideration exceeds any obligation required by law (See, Pratt v. Robinson, 39 NY2d 554, at 559).

Respondent's decision to eliminate the bus stop-to-school bus service at issue here is consistent with the Education Law and Chancellor's Regulations. Respondent has adequately considered factors such as safety and efficiency. Petitioner indicates the students' parents are opposed to respondent's decision, but offers no evidence to contest any of the conclusions reached by respondent. Therefore, I find no basis on which to substitute my judgment for that of respondent in this instance.